r. 


^^'''■^^^^^ /yx_ 


^  <^  ■C^.^^^^.^.^u,^    4^^^   ^^^ 


606  Mont 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


■■lONEHS, 
"t'on.D.c. 


f 


if' 


PEINCIPLES 


LAW  or  PERSONAL  PROPERTY, 


INTENDED    FOR 


THE  USE  OF  STUDENTS  IN  CONVEYANCING, 


By  JOSHUA  WILLIAMS,  ESQ., 

OF  LINCOLN'S  INN,  BARRISTER  AT  LAW, 

ONE  OF  THE  CONVEYANCING  COUNSEL  OF  THE  COURT  OF  CHANCERY. 


AMERICAN  EDITORS, 

BEN'JAMDT  GERHARD  AND  SAMUEL  WETHERILL. 


FROM    THE 

FIFTH   LONDON   EDITION. 


WITH    NOTES    AND    REFERENCES 

BY 

SAMUEL  WETHEEILL. 


PHILADELPHIA: 

T.    &    J.    W.    JOHNSON   &    CO., 

LA"W    BOOKSELLERS    AND    rUBLISHERS, 

No.  535  CHESTNUT  STREET. 
1  8  6  G. 


T 


Entered  according  to  the  Act  of  Congress  in  the  year  1866,  by 

T.   &    J.    W.   JOHNSON    &    CO., 

In  the  Clerk's  Office  of  the  District  Court  for  the  Eastern  District  of  Pennsylvania. 


SHERMAX   &    CO.,    PUINTERS. 


PEEFACE 

TO    THE    FIEST    EDITION. 


The  following  pages  are  intended  as  supplementary  to  the 
author's  "  Principles  of  the  Law  of  Real  Property."    At  the  time 
when  that  work  was  written,  the  plan  of  the  present  treatise  was 
not  matured,  and  a  chapter  "  On  Personal  Property  and  its  Alien- 
ation" was  inserted  in  that  work.     The  contents  of  that  chapter 
will  be  found  interspersed  in  parts  of  the  present  volume ;  and 
should  a  second  edition  of  the  "  Principles  of  the  Law  of  Real 
Property"  be  called  for,  it  is  the  author's  intention  to  omit  that 
chapter  of  his  former  work,  and  to  sujjply  its  place  by  some 
further  remarks  on  such  elementary  parts  of  the  law  of  real  prop- 
erty as  may  appear  to  have  been  but  slightly  touched  upon  be- 
fore.    The  very  favorable  reception  which  the  author's  work  on 
the  law  of  real  property  has  met  with  from  the  profession  has 
encouraged  him  to  undertake  in  the  present  work  a  task,  he 
believes,  hitherto  uuattempted :  for  it  is  singular  that,  notwith- 
standing the  rapid  growth  and  now  enormous  value  of  personal 
property  in  this  country,  no  treatise  has  yet  appeared  having  for 
its  object  the  introduction  of  the  student  in  conveyancing  to  that 
large  and  increasing  portion  of  his  study  and  practice  which  com- 
prises the  law  relating  to  such  property.     As  to  real  property,  he 
may  take  his  choice  amongst  three  or  foiir  publications,  all  having 
the  same  object  of  facilitating  his  studies;  but  the  law  of  per- 
sonal property,  though  sufficiently  treated  of  in  all  that  relates  to 
it  as  purely  mercantile,  has  not  yet  had  any  elementary  treatise 


6S.7514 


IV  PREFACE    TO   THE   FIRST   EDITION. 

on  its  principles,  so  far  as  tlic}'  aftect  tlie  practice  of  conveyancing. 
The  present  work  is  an  attempt  to  supply  this  deficiency,  and,  in 
conjunction  with  the  author's  "  Principles  of  the  Law  of  Real 
Property,"  to  afford  the  student  a  brief  and  simple  introduction 
to  the  whole  system  of  modern  conveyancing.  The  novelty  of 
the  attempt  has,  however,  increased  the  difficulty  of  the  task. 
The  author  has  endeavored  proportiouably  to  increase  his  dili- 
gence and  care.  He  can,  however,  scarcely  hope  to  have  escaped 
all  errors.  And  here  he  would  caution  the  student  against  too 
implicit  a  reliance  on  the  dicta  of  text-books.  Elementary  books 
cannot  from  their  nature  be  completely  accurate.  As  helpers  to 
more  perfect  knowledge,  they  may  be  most  valuable.  But  it 
would  be  as  great  a  mistake  for  a  student  to  remain  satisfied 
with  his  knowledge  of  a  text-book,  as  for  an  author  to  compress 
into  an  elementary  work  all  that  could  possibly  be  said  on  the 
subject. 


7  New  Square,  Lincoln's  Inn, 
23d  May,  1848. 


PREFACE 

TO    THE    AMEEICAN    EDITION. 


The  object  of  the  present  edition  of  this  work  lias  been  to 
accommodate  Mr.  Williams's  Treatise  to  tbe  United  States,  by 
incorporating  in  tbe  notes  the  American  law ;  so  as  to  make  the 
book  useful  to  the  American  profession,  both  as  an  elementary 
composition  for  the  student,  and  as  a  book  of  reference  for  the 
practitioner.  The  editor  has  not  indulged  in  original  researches; 
but  it  will  be  suiScient  proof  of  his  industry  to  state  that  several 
thousand  cases  have  been  referred  to  in  the  notes,  and  in  most 
instances  where  a  citation  has  been  made,  the  original  book  has 
been  consulted,  and  when  practicable,  the  opinions  of  the  Judges 
have  been  quoted,  rather  than  the  syllabus  of  the  reporter  of  their 
decisions,  or  any  abstract  of  such  judgments.  An  index  of  the 
American  cases,  and  of  the  additional  EngHsh  authorities  refer- 
red to  in  the  notes  to  this  edition,  accompanies  the  book,  by 
which  any  decision  cited  in  those  notes  may  be  readily  found. 

If  it  be  true,  as  the  author  modestly  tells  his  readers  in  the 
preface  to  the  first  edition  of  his  work,  that  no  text-book  of  the 
law  can  be  completely  accurate,  how  very  much  less  must  be  the 
approach  to  perfection  by  annotators. 

With  this  brief  introduction  the  work  is  submitted  to  the  pro- 
fession; should  it  prove  useful,  the  object  had  in  view  will  have 
been  attained. 


131  South  Fifth  Strkkt,  Philadelphia, 
August  13,  18GC. 


ADVERTISEMENT 

TO     THE    FIFTH    EDITION. 


In  this  edition  the  alterations  which  have  taken  place  in  the 
Law  since  the  publication  of  the  last  edition  have  been  incor- 
porated in  the  text. 


3  Stone  Buildings,  Lincoln's  Inn, 
February,  18G4. 


TABLE   OF   CONTENTS. 


mTEODUCTOEY  CHAPTER 

The  pages  referred  to  are  those  between  brackets  [  ]. 

PAGE 

Of  the  Subjects  and  Nature  of  Personal  Property,      .         .         1 


PART    I. 

OF  CHOSES  IN  POSSESSION", 9 

CHAP.  I. 
Of  Chattels  which  descend  to  the  Heir, 9 

CHAP.  II. 
Of  Trover,  Bailment,  and  Lien, 22 

CHAP.  III. 
Of  the  Alienation  of  Choses  in  Possession,     ....      32 

CHAP.  lY. 
Of  Ships, 52 


PART    11. 

OF  CHOSES  IN  ACT:I0N, .60 

CHAP.  I. 
Of  Actions  ex  delicto, 60 

CHAP.  II. 
Of  Contracts, QQ 

CHAP.  III. 
Of  Debts, 91 

CHAP.  IV. 
Of  Bankruptcy  of  Traders, 124 

CHAP.  V. 
Of  Bankruptcy  of  Non-traders,        .        .        ...        .        •     149 


8  TABLE   OF   CONTENTS. 

CHAP.  YI. 

PAGE 

Of  Insurance, 159 

CHAP.  YII. 
Of  Arbitration, 165 


PART    III. 

OF  mCOKPOEEAL  PEESOIS^AL  PEOPEETY,     .        .        .     180 

CHAP.  I. 

Of  Personal  Annuities,  Stocks,  and  Shares,   ....     180 

CHAP.  II. 
Of  Patents  and  Copyright, 214 


PART    lY. 

OF  PEESONAL  ESTATE  GEXEEALLY,       .        .        .        .236 

CHAP.  I. 
Of  Settlements  of  Personal  Property, 236 

CHAP.  II. 
Of  Joint  Ownership  and  Joint  Liability,        ....     276 

CHAP.  III. 
Of  a  Will, 294 

CHAP.  lY. 
Of  Intestacy, 326 

CHAP.  Y. 
Of  the  mutual  Eights  of  Husband  and  Wife,  .        .        .     340 


PART    Y. 

OF  TITLE, 365 


Appendix  (A.), 383 

Appendix  (B.), 388 

Index, 401 

The  pages  referred  to  in  the  notes  are  those  between  brackets  [  ]. 


INDEX  TO  THE  AMERICAN  CASES  CITED. 


The  pages  referred  to  are  those  of  the  present  volume. 


Aaron,  Perry  v.  507 
Abbot  V.  Pinchin,  263 
Abbott,  Wright  t.  178 
Abby  V.  Billups,  255 
Abel  V.  Forgue,  392 
Abercrombie  v.  Knox,  189 
Aberdeen  v.  Blackwell,  189 
Abrahams,  Robbins  v.  485 
Tripner  v.  374 
Abrams  v.  Camp,  166 

V.  Kounts,  132 
Acheson  v.  McCombs,  426 
Acker,  Burrall  v.  398 

Smith  V.  105 
T.  Ledyard,  155 
Ackerman,  Rogers  v.  506 
Adair,  Clark  v.  53 
Adams,  Allen  v.  179 

Bailey  v.  192 

Child  V.  308 

Cowan  V.  502 

Deberry  v.  195 

Dodge  V.  138 

Gardner  v.  54 

Hefiferman  v.  503 

Holly  V.  421 

Hunt  V.  155 

Joyce  V.  93 

Judson  V.  404 

Mowry  v.  189 

Nicholas  v.  420 

Pratt  V.  162 

Richardson  v.  422 

Sword  V.  341 

Terrall  v.  167 

V.  Barrett,  159 

V.  Bayles,  262 

V.  Bush,  172 

V.  DeCook,  432 

V.  Frye,  155 

V.  Gay,  160 

V.  Whittemore,  241 
Addicks,  Commonwealth  v.  490 
Addison  v.  Bowie,  357 


Agnew  V.  McElhare,  161 
Agry.  Wallace  v.  203 
Ahman,  Zachrisson  v.  119 
Ahrenfeldt  v.  Ahrenfeldt,  489 
Aiken  v.  Cathcart,  153 
Aiken,  Mathews  v.  190 
Ainsworth,  Dresser  v.  510 

Pomeroy  v.  304 
Alban,  Gilbreath  v.  445 
Albee,  Buck  v.  159 
Albert  v.  Winn,  373 
Albin  V.  Lord,  486 
Albright,  Wilson  v.  200 
Alcock  V.  Giberton,  164 

V.  Hill,  192 
Alden,  Capen  v.  207 
Alderson,  Otts  v.  511 
Aldrich  V.  Jackson,  510 
V.  Warren,  497 
Alexander,  Ciples  v.  442 

Coppage  y.  471       ^ 
Denis  V.  94 
Huse  V.  205 
Judge  V.  426 
Price  V.  404 
V.  Gibson,  240 
V.  Troutman,  134 
V.  Williams,  426 
Alexandria  v.  Patten,  205 
Alger,  Colwell  v.  442 

Thompson  v.  280 
V.  Scoville,  144 
Allee,  Clark  v.  398 
Allegre  v.  Insurance  Comp'any,  263 
Allen,  Beals  v.  501 

Bellows  V.  125 

Chase  v.  134 

Gifford  V.  192 

James  v.  242 

McMahon  v.  54 

Mooer  v.  262 

V.  Adams,  179 

V.  Brazier,  133 

V.  Centre  Valley  Company,  399 

V.  Chase,  262 

V.  Cockerill,  507 


X 


INDEX   TO   AMERICAN    CASES   CITED, 


Allen    T.  Culver,  206 
V.  Davi,«()n,    141 
V.  Dodd,  1(>2 
V.  Ilolden,  55 
T.  Hunter,  317 
V.  Jiirvii!,  143 
V.  Kimball,  20(5 
V.  JMereier,  100 
V.  Ogden, 501 
V.  Paneoast,  57 
V.  Reesor,  182 
V.  Rumph,  375 
V.  AVatson.  262 
V.  AVells,  398 
V.  'Williams,  1I{> 
AVadsworth  v.  193 
AValiingsford  v.  375 
AVilliaras!  v.  94 
Ailing,  Crane  v.  389,  392 
Allisi,  Crosswell  v.  105 
Allison,  Carr  v.  138 

T.  Wilson,  3fi2 
Allston,  Ravises  V.  156 
Alna  V.  Pluramer,  141 
Alsop's  Appeal,  445 
Alsop  V.  Mather,  383 
Alston,  Foster  v.  491 
V.  Alston,  357 
Alter,  Beroihaus  v.  205 
Amber  v.  Hamlet,  94 
Ambler,  Ruddell  r.  161 
T.  Beverly,  404 
Ambrose,  Basye  v.  133 
Ames,  Northampton  Paper  Mills  v.  127 
United  States  v.  263 
V.  Howard,  317 
Amidon,  Hunt  v.  189 
Amory  v.  Gihnan,  167 
Anable,  Davis  v.  204 
Anderson,  Coffin  v.  78 

Directors  v.  122 
Brown  v.  516 
Hammett  v.  241 
Mfcrys  V.  339 
Tankersley  v.  190 
Tinsley  v.  190 
V.  Coonley,  501 
y.  DeSoer,  55 
V.  Douk,  200 
V.  Farnham,  262 
T.  Foster,   160 
V.  Levan,    204 
V.  Manon,  192 
T.  Neef,  389,  393 
T.  Roberts,  375 
V.  Tompkins,   408 
V.  Turnpike  Company,  203 
V.  Van  Allen,  518 
T.  Washabaugh,   440 
V.  Wheeler,  241 
Wiggins  V.  200 
Andover  v.  Gould,  138 

V.  Grafton,  504 
Andress  r.  Miller,  211 
Andrew  v.  Brown,  408 

V.  Dieterick,  94 
Andrews,  Low  v.  90 

V.  Andrews,  394 


Andrews  v.  Beecker,  519 
V.  Brown,  383 
V.  Durant,  86 
V.  Hunneman,  426 
V.  Jones,  373,  486 
V.  Keith,  398 
V.  Kneeland,  501 
V.  Ludlow,  200 
Andross,  Sackett  v.  219 
Anesley,  Lindsey  v.  133 
Anewalt's  Ap.,  362 
A  New  Brig,  Davis  v.  82 
Angel  V.  Pownall,  501 
Angle  v.  Railroad  Co.,  121 
Anthony,  Bank  v.  193 

Gilbert  v.  157 
Apgar  V.  Hiler,  189 
App  V.  Coryell,  380 

V.  Driesback,  58 
Applegate,  Smith  v.  162 
Appelby,  Hawkins  v.  408 
Appleton,  Bascomb  v.  189 
Grattan  v.  421 
V.  Bancroft,  105 
V.  Donaldson,  153 
Arbuckle  v.  Thompson,  119 
Arden,  Sterry  v.  375 
Archer  v.  Boyne,  380 
V.  Dunn,  380 
V.  Hart,  186 
Arrafield  v.  Armfield,  373 
Armistead,  Picot  v.  471 
Armstead,  Barbee  v.  162 
Armstrong,  County  v.  56,  498 
Cruger  v.  497 
Hodges  V.  190 
V.  Gray,  153 
T.  Stone,  491 
T.  Toller,  159 
V.  Hayward,  393 
Arndt,  White  v.  66,  67 
Arnold,  Lindau  v.  200 
V.  Camp,  202 
V.  Frazier,  200 
T.  Gilbert,  471 
V.  Hallenbrake,  501 
V.  Lanier,  125 
Arrington  v.  Screws,  200 
Arrison  v.  Harmstead,  156 
Artcher,  McCoy  v.  510 
Arthur,  Bank  v.  133,  160 
Arthurs,  Kramer  v.  385 
Ashbey,  Dogan  v.  204 
Ashbrook,  Cunningham  v.  93 
Ashe,  Wood  v.  509 
Ashford  v.  Ewing,  68 
Ashley  v.  Reeves,  608 
Ashton,  Thompson  v.  510 
Ashworth,  Shallenberger  v.  364 
Association,  Denny  v.  304 
Houser  v.  303 
McGrath  v.  304 
V.  Association,  206 
V.  Berghaus,  159 
V.  Moore,  206 
V.  Webster,  304 
Astor,  Bank  v.  501 
Ogden  V.  403 


INDEX    TO   AMERICAN    CASES    CITED. 


XI 


Atkins,  Bayard  v.  354 

Laughton  v.  432 

Smith  V.  90 

V.  Colby,  99 
Atliinson,  Spear  v.  203 

Withers  v.  156 
Atwell  V.  Miller,  93 
Attvill  V.  Ferrett,  330 
Atwood,  Lucas  v.  397 
V.  Coburn,  139 
V.  Meredith,  399 
Aubic  V.  Gill,  178 
Audibon,  Ayres  v.  241 
■  Augbey,  Cole  Co.  v.  190 
Auld,  Lanier  v.  510 
Aurand,  Boyer  v.  262 
Austin,  Glover  v.  380 

Grosvenor  v.  397  " 

Ins.  Co.  V.  365 

Logan  V.  162 

Pearce  v.  66,  497 

Rice  V.  404 

Sayre  v.  178 

V.  Dorwin,  202 

V.  Mclnlay,  172 

Young  V.  94 
Averill,  Maxey  v.  384 

V.  Loucks,  172,  204 

V.  Lyman,  392 
Avery,  Merrick  v.  105 

V.  Moore,  125 
Axers  v.  Musselman,  204 
Ayer,  Burnhan  v.  155 

V.  Hutchinson,  162 
Ayers  v.  Harnes,  157 
Aymar,  Bank  v.  501 
Ayres,  Gerrish  v.  262 

V.  Audibon,  241 

V.  Parks,  507 
Ayrs,  Shaw  v.  263 

B. 

Babb  V.  Clemson,  155 
Babbitt  v.  Riddell,  339 
Babcock,  Van  Marter  v.  164 
V.  Booth,  125 

V.  Railway  Corporation,  504 
V.  Weston,  242 
Bachtell,  Taney  v.  130 
Backhouse  v.  Jett,  378 

V.  Patton,  207 
Backus  V.  Gould,  331 

V.  Murphy,  399 
Bacon,  Lewis  v.  207 
Preston  v.  162 
StafiFord  v.  139 
V.  Brown,  206,  506 
V.  Crandon,  262 
Bacot  V.  Parnell,  339 
Badgely,  Clark  v.  161 
Badger,  Kendall  v.  241 
V.  Phinney,  52 
Badgett,  Broughton  v.  56 
Badlum  v.  Tucker,  126 
Bagley,  Betts  v.  240 

Chamberlain  v.  134 
V.  Burzell,  192 


Bagley  v.  Peddie,  133 
Bagwell  V.  Elliott,  433 
Bailey,  Bowman  v.  404 
De  Zeng  v.  393 
Jackson  v.  205 
Stroud  V.  470 
V.  Adams,  192 
V.  Bailey,  432 
V.  Bussing,  140 
V.  Mizell,  190 
V.  Powell,  380 
V.  Seal,  242 
V.  Stewart,  262 
V.  Taylor,  155 
V.  Teackle,  471 
v.  Trustees,  144 
V.  Wagener,  445 
Bailie,  Hart  v.  202 

Walsh  V.  192 
Baillie,  Caron  v.  508 
Baily  v.  Brownfield,  189 
Bain  v.  Clark,  72 
Baird,  Colladay  v.  330 
Patton  V.  263 
V.  Matthews,  508 
V.  Tolliver,  132 
Baker,  Bittinger  v.  72 
Campbell  V.  189 
Hensley  v.  509 
Lobdel  V.  501 
Miller  v.  68 
Rockafellow  v.  507 
Stoallings  v.  405 
Tarleton  v.  167 
V.  Briggs,  191 
V.  Davis,  66,  70 
V.  Fales,  52 
V.  Fordyce,  192 
V.  Gregory,  140 
V.  Haley,  160 
V.  Lorillard,  348 
V.  Lukens,  173 
V.  McFerran,  432 
V.  Stackpoole,  207 
V.  Taylor,  319 
V.  Whitting,  371 
Baker's  Ap.,  211 
Balcom,  Gilett  v.  72 
Balcolm  v.  Craggin,  138 
Baldwin,  Bank  v.  192 
Dane  v.  498 
Litton  V.  486 
Lord  V.  395,  397 
King  V.  190 
Marston  v.  52 
Mellon  V.  125 
Preble  v.  144 
Reeves  v.  501 
Van  Wagener  v.  445 
V.  Carter,  373 
V.  Hale,  241 
Ball  V.  Gilbert,  159 
Ballentine,  Bracken  v.  200 
V.  Haight,  210 
Ballume  v.  Wallace,  105 
Baltimore  v.  Eschbach,  502 
Bampfield,  Philson  v.  383 
Banchur  v.  Warren,  93 


Xll 


INDEX    TO   AMERICAN   CASES   CITED. 


Bancroft,  Appleton  v.  105 
Banfield  v.  Brutton,  50& 
Bangs  V.  Hall,  139 

V.  Strong,  192 
Bank,  Baldwin  v.  192 

Barber  v.  398 

Barrington  v.  155,  S92 

Bates  V.  160 

Beach  v.  408 

Beale  v.  204 

Beebee  v.  193 

Bennett  v.  374 

Billingsley  t.  161 

Bleight  V.  362 

Boughton  V.  195' 

Bozeiuan  v.  392 

Brandon  v.  78' 

Brown  v.  55 

Burns  v.  191 

Cleghorn  v.  40O 

Clopper  V.  153. 

Colonib  V.  371 

Crabb  tf.  178 
Dana  v.  210 
Dawsoa  v.  193 
Donaldson  v.  38* 
Duval  V.  371 
Findlay  v.  195 
Fleckne-r  v.  160 
French  y.  153 
Grosverwr  t.  20O 
Hemphill  v.  501 
Herrick  v.  194 
Henessy  v.  210 
Hunt  V.  365 
Hussey  v.  205 
Hutchinson  v.  50&' 
Inge  V.  192 
Ives  V.  157 
Johnson  v.  155,  42© 
Jones  V.  S94 
Loudon  V.  56 
Mahone  t.  180 
Marsh  v.  208 
McDowell  V.  190 
McMullen  V.  190 
Merrick  v.  389 
Miller  v.  407 
Minor  v.  38& 
MontgoEnery  r.  486 
Moorehead  v.  20& 
Murphy  v.  390 
Payne  v.  191 
PindaH  v.  205 
Post  V.  153 
Ramsay  v.  190 
Ratcliffe  v.  156 
Richardson  v.  190 
Roberts  v.  52,  66 
Saltmarsh  v.  161 
Sanders  v.  202 
Shedd  V.  408 
Sigler  V.  396 
Society  v.  501 
Sparks  v.  66 
Spring  V.  192 
State  V.  180 
Stroehecker  v.  189 


Bank,  Turney  v.  160 
Walker  v.  159 
Washburn  v.  397 
White  V.  160 
Wilkinson  v.  123 
Williams  v.  178 
Wilson  V.  194 
Winship  v.  407 
Woodworth  v.  155 
V.  Anthony,  193 
V.  Arthur,  138,  160 
V.  Astor,  501 
V.  Aymar,  501 
V.  Bank,  195,  501 
V.  Barrington,  192 
V.  Benedict,  206 
V.  Bevine,  503 
V.  Boyer,  160 
V.  Brown,  206,  375 
V.  Burchard,  161 
V.  Cameron,  502 
V.  Carrol,  192 
V.  Colcord,  190 
V.  Cowdon,  171 
V.  Crary,  105 
V.  Crosby,  192 
V.  Cunningham,  153 
V.  Daniels,  205 
V.  De  Grann,  203 
V.  Dixon,  193 
V.  Doolittle,  392 
V.  Dunn,  601 
V.  Edwards,  192 
V.  Emerson,  66 
V.  Ennis,  374 
V.  Ferris,  200 
V.  Fletcher,  190,  202 
V.  French,  193 
V.  Gibson,  190 
V.  Gore,  407 
T.  Gorman,  210 
V.  Govan,  194 
T.  Gray,  404 
T.  Gross,  155 
V.  Haldeman,  162 
V.  Hall,  155 
V.  Hammond,  157 
V.  Hanrick.  193 
V.  Hatch,  192 
T.  Hill,  192,  207 
V.  Hoge,  192 
V.  Huth,  378 
T.  Ives,  192 
V.  James,  192 
V.  Jones,  501 
V.  Kendrick,  207 
V.  Klegensniith,  194 
v.  Kortwright,  157 
v.  Lewis,  194,  504 
V.  Meredith,  207 
V.  Merrick,  162 
Y.  Messenger,  392 
v.  Myley,  385 
V.  NiJes,  162 
v.  Norton,  504 
T.  Penick,  155 
T.  Reynolds,  192 
v.  Rollins,  194 


INDEX   TO   AMERICAN   CASES   CITED. 


Xlll 


Bank   v.  Roosa,  50,  334 
V.  Rosevelt,  206 
V.  Saving  Fund,  503 
V.  Sears,  155 
V.  Smith,  157,  240 
V.  St.  John,  172 
V.  Sullivan,  139,  196 
V.  Throop,  172 
V.  Topping,  442 
V.  Transportation  Co.,  121 
V.  Treadwell,  395 
V.  Turnley,  500 
V.  Vanmeter,  153 
V.  Walker,  153,  190 
V.  Wilkins,  401 
V.  Wise,  339 
V.  Woodward,  192 
Banker  v.  Caldwell,  330 
Bankhead  v.  Carlisle,  471 
Banking  Company  v.  Woodrufif,  373 
Bank's  Ap  ,  408 
Banks  v.  Hughes,  510 
Banorgee  v.  Hovey,  502 
Barbarin  v.  Daniels,  56,  497 
Barbee  v.  Armstead,  162 
Barber,  Rew  v.  510 

Starrett  v.  206 
Tobey  v.  202 
V.  Bank,  398 
Ward  V.  383 
Barclay,  Finn  v.  166 
Bardwell  v.  Perry,  397 
Bare,  Moore  v.  404 
Barfleld  v.  Cole,  105 
Barger  v.  Durvin,  196 
Barickman  v.  Rhykendall,  143 
Barker,  Ellis  v.  486 
Smith  V.  397 
V.  Crosby,  335 
V.  Koneman,  374 
V.  McClure,  194 
Barkley,  Crawford  v.  504 
Barkley's  Estate,  446 
Barlow,  Church  v.  153 
V.  Scott,  123 
V.  Smith,  138 
Barnard,  Rice  v.  399,  516 
V.  Graves,  204 
V.  Harrington,  126 
V.  Poor,  94 
V.  Yates,  508 
Barnawell  v.  Smith,  440,  516 
Barnes,  Hills  v.  155 
Rugg  V.  105 
v.  Crandell  178 
V.  Irwin  485 
V.  Prevost,  354 
Bamett,  Nettles  v.  124 

Troutman  v.  161 
Vanhook  v.  157 
V.  Stanton,  508 
Barney,  Gaston  v.  208 
V.  Grover,  190 
Barnhill,  Peters  v.  189 
Barnum,  Wilson  v.  318 
Barnwell,  Clark  v.  119 
Barr  v.  Perry,  200 
Barrabine  v.  Bradhears,  155 
Barrere  v.  Barrere,  491 


Barrett,  Adams  v.  159 
Chase  v.  404 
Lance  v.  501 
Stearns  v.  164 
V.  Copeland,  125 
V.  Hall,  317 
V.  Halls,  507 
V.  Lewis,  208 
V.  Swann,  403 
V.  Thompson,  172 
V.  Thorndike,  156 
Barringer  v.  King,  199 
Barrington,  Bank  v.  192 
Towar  v.  210 
V.  Bank,  155,  392 
V.  Justice,  71 
Barrinton,  Shead  v.  395 
Barron  v.  Barron,  375 
Barrows  v.  Harrison,  93 
Barry,  Biggs  v.  99 

Manella  v.  500 
Moore  v.  425 
Odineal  v.  162 
V.  Withers,  519 
Barstow,  Smith  v.  159 
Bartholomew,  Smith  v.  202 

v.  Bushnell,  510 
Bartlett,  Miller  v.  405 
Territt  v.  162 
V.  Jones,  404 
V.  Wood,  66 
Bartlette  v.  Crittenden,  330 
Barton  v.  Holly,  485 

V.  Plank  Road  Co.,  159 
Bascomb,  Appleton  v.  189 
Bason  v.  Hughart,  180 
Bass,  Lyles  v.  508 

Strong  V.  448 
Bassett  v.  Cunningham,  262 
Bassier  v.  Pray,  162 
Bastian,  Railway  Co.  v.  504 
Basye  v.  Ambrose,  133 
Batchell,  Taney  v.  144 
Batchelor,  Rogers  v.  397 
Bates,  Hollingsworth  v.  93 
Leteher  v.  154 
Noble  v.  133 
V.  Bank  160 
V.  Kempton,  423 
V.  Iron  Company,-  504 
V.  Watson,  159 
Batten  v.  Selleman,  318 

V.  Taggart,  318 
Batty  V.  Carswell,  502 
Baum,  Fitzsimons  v.  161 

V.  Stevens,  507 
Baxter,  Torrey  v.  204 
V.  Rodman  404 
V.  AVales,  133 
Bay,  Insurance  Co.  v.  487 
Bayard,  Schimmepnich  v.  501 
V.  Atkins,  354 
V.  Hoffman,  378 
Bayles,  Adams  v.  263 
Bayley,  Haughton  v.  381 
Bayne  v.  Morris,  203 
Beach,  Bostwiek  v.  200 
Glass  V.  139 


XIV 


INDEX    TO   AMERICAN   CASES   CITED. 


Beach,  Hill  v.  397 

McDonald  v.  396 
Sturgess  v.  383 
T.  Bank,  408 
V.  Haywiird,  S95 
V.  Wliite,  374 
Beale,  Ellis  v.  167 
Fister  v.  125 
Phillips  V.  348 
Plossor  V.  lao 
Stosson  V.  134 
V.  Bank,  204 
V.  Haye?,  132 
Beals,  Green  v.  408 
T.  Allen,  501 
T.  Olmstead,  507 
Bean,  Newman  v.  398,  404 

V.  Farnam,  263 
Bear  v.  Bear,  375 
Bearden  v.  Smith,  133 
Beardin,  Winchester  v.  190 
Beardsley  v.  Warner,  193- 
Beatie,  Rose  v.  508 
Beattie,  White  v.  444 
Beatty  v.  Wray,  383 
Beauchanip,  McMiken  t.  155 
Beaumont  v.  Yeatman,  106- 
Beauton  t.  Rice,  207 
Beaver  v.  Beaver,  190 
Beazley,  Reed  v.  376 
Bebo,  Marten  v.  486 
Beck  V.  McGillis,  445 
Beckar  v.  Levy,  151 
Beckfaam  t.  Secrest,  378 

Williamson  t.  486 
Beckley,  Miller  v.  194 
Bedell,"  Ross  v.  153 
Bedford  v.  Hunt,  310 
Bedient,  Bizzel  v.  241 
Beecker,  Andrew?  v.  519 
Beebee  v.  Bank,  193 

T.  D'Baun,  53 
T.  Miller,  381,  394 
V    Robert,  509 
Beeker  v.  Beeker,  58 
Beekman,  Stagg  v.  44S 
Beeman  v.  Buck,  507 
Beer  y.  Hooper,  241 
Beerman,  Myers  v.  200 
Beers  v.  Haugbton,  240 
V.  St.  John,  66 
Beeson  t.  Beeson,  242 
Begley,  Evans  v.  172 
Belcher  v.  Grubb,  2t)0 
Waldo  V.  94 
Belden,  Chandler  v.  119 

V.  Lamb,  161 
Belding  v.  Pitkin,  162 
Belknap  v.  Wendell,  404 
Bell,  Etheridge  v.  354 
Livingston  v.  210 
McCausland,  v.  179 
Pullen  V.  66 
V.  Hogan,  335 
V.  Rowland,  139 
V.  Morrison,  140 
V.  Newman,  211,  400 
V.  Quin,  159 
T.  Troy,  500 


Bell,  Vaughn  v.  105 

Weakley  v.  194,  203 
Bellamy,  Despatcli  v.  66 
Beller  v.  Block,  94 
Belloni,  Melburn  v.  503 
Bellows,  Brown  v.  132 
v.  Allen,  125 
v.  Lovell,  193 
Belton  V.  Cutts,  139 
Benbury,  Hamilton  v.  206 
Bendull  v.  Bendall,  341 
Benedict,  Bank  v.  206 
Forney  v.  140 
Williams  v.  180 
V.  Schaettle,  98 
Benniger  v.  Corwin,  510 
Benjamin  v.  Le  Baron,  125 

V.  McConnell,  392 
Benneson  v.  Thayer,  202 
Bennett,  Little  v.  348 
Salmon  v.  375 
Sherrod  v.  139 
v.  Bank,  374 
V.  Bennett,  72 
V.  Buchanan,  189 
V.  Davis,  172 
V.  Piatt,  94 
V.  Robinson,  470 
Benny  v.  Pegrnm,  502 
V.  Rhodes,  502 
Benson,  Hickerson  v.  166 
Hunt  v.  384 
Rogers  V.  370 
Vickery  v.  156 
Bently  v.  Morse,  140 
V.  Harris,  378 
Berger,  Phillips  v.  203 
Berghaus,  Association  v.  159 

v.  Alter,  205 
Berkey,  Morrison  v.  205 
Berksdale  v.  Fenwick,  189 
Berlin,  West  v.  119 
Bernard  v.  Wilcox,  383 
Berthold  v.  Goldsmith,  404 
Bertrand,  Viser  v.  139 
V.  Byrd,  138 
Berry,  Brooke  v.  53 
Dunlap  V.  94 
Hawkins  v.  506 
Nave  V.  255 
Rison  V.  262 
T.  Walker,  160 
Berryhill,  McKee  v.  408 
V.  Wells,  179 
Bestock,  Pyle  v.  192 
Bethea,  Gregg  v.  354 
Betts  v.  Bagley,  240 
Bevan,  Borrekins  v.  5i'9 
Beverly,  Ambler  v.  404 

Peter  v.  202.  362 
V.  Stevens,  262 
Bevil  V.  Hix,  166 
Bevin  v.  Insurance  Co.,  252 
Bevine,  Bank  v.  503 
V.  Dord,  509 
Bewely,  Gregory  v.  161 
Bickford,  Mnhurin  v.  178 
Willard  v.  263 
Bickham,  Graham  v.  133 


INDEX    TO   AMERICAN    CASES   CITED. 


XV 


Bickham,  Moore  v.  155 
Bicknell,  Brooks  v.  314,  317 
Biddes  v.  James,  162 
Biddle,  Templeman  v.  72 
Bidwell,  Gay  v.  105 

Speer  v.  263 
Bigelow,  Deshon  v.  94 
Biggs  V.  Barry,  99 
Bigelow,  Dorman  v.  143 

Rowley  v.  100,  102 
V.  Denison,  504. 
Bigham,  Price  v.  487 
Biglow,  Parker  v.  160 
Billingsley,  Magee  v.  509 
V.  Bank.  161 
Billups,  Abby  v.  255 
Binford,  Govan  v.  193 
Binns  v.  Woodruff,  330 
Bird,  Emanuel  v.  383,  397 
V.  Cain,  200 
V.  Morrison,  384 
Birdsall,  Brown  v.  395 
Birkhead  v.  Brown,  192 
Birmingham,  Taylor  v.  471 
Birney  v.  Richardson,  426 
Bisbee  v.  Hall,  50,  333 
Biscoe  V.  Biscoe,  336 
Bishop,  Hamilton  v.  375 
Travis  v    105 
Tucker  v.  354 
V.  Holcombe,  519 
V.  Cook,  105 
Bispham,  Fraley  v.  609 

V.  Patterson,  408 
Bissel,  Draper  v.  408 
Heilbron  v.  208 
Turner  v.  404 
Bissell,  Terry  v.  159 
Bito  V.  Porter,  203 
Bittenbender  v.  Railroad  Co.,  210 
Bittinger  v.  Baker,  72 
Bixler,  Rice  v.  362 
Bizzel  V.  Bedient,  241 
Black,  Keeman  v.  506 
Martin  v.  143 
Slate  V.  167 
Smith  V.  204,  396 
V.  Black,  384 
V.  Schooler,  205 
V.  Stone,  315 
V.  Struthers,  390 
Black's  Appeal,  211,  400 
Blackford,  Howard  v.  160 
Blackly,  Wiser  ^.  371 
Blackstone  v.  Blackstone,  444 
Blackwell,  Aberdeen  v.  189 
Gilmer  v.  182 
Potts  V.  399 
Reading  v.  362 
Blackweller,  Foggart  v.  607 
Blade  v.  Noland,  167 
Blair  v.  Williams,  240 
Blaisdell,  Spencer  v.  200 
Blake,  Brackett  v.  65 
Coolidge  V.  158 
V.  Low,  425 
V.  Mutter,  384 
Blakeman,  Lasley  v.  347 


Blakeman,  Noyes  v.  487 
Blakeney  v.  Ferguson,  143 
Blakey  v.  Blakey,  380 
Blakey's  Ap.,  210 
Blanc,  Hopkins  v.  503 
Blanchard,  Patterson  v.  404 
Rush  V.  357 
V.  Dyer,  380 
V.  Coolidge,  405 
V.  Russell,  242 
V.  Sprague,  316 
Blank,  Cresswell  v.  384 
Blanshaw,  Jackson  v.  334 
Blantier  v.  Whitaker,  503 
Blantin  v.  Whitaker,  503 
Blatzell,  Spann  v.  202. 
Blazer,  Carson  v.  72 
Bledsoe  v.  Thompson,  167 
Bleene  v.  Proudfit,  501 
Bleight  V.  Bank,  362 
Blier  v.  Pierce,  65 
Blin,  Burton  v.  161 
Blinn  v.  Chester,  202 
Bliss,  Nichols  v.  161 
Bowser  v.  164 
V.  Perryman,  140 
Block,  Beller  v.  94 

V.  Walker,  57 
Blodgett,  Morrison  v.  397 
Blood  V.  Richardson,  67 
Bloodgood,  Johnson  v.  442 
Bloomer  v.  Bloomer,  422 

V.  McQuewan,  314 
V.  Millenger,  314 
V.  Stolley,  316 
Bloomfield,  Fairbanks  v.  105 
Blount  V.  Hawkins,  143 
Blunt  V.  Patten,  331 
V.  Gee,  471 
V.  Walker,  203 
Blystone  v.  Burgett,  105 
Boardman,  Reed  v.  205 
V.  Gore,  407 
V.  Goret,  157 
V.  Keeler,  395,  404 
Boarman  v.  Groves,  487 
Boatwright,  AVatson  v.  508 
Boddie,  Boyers  v.  160 
Body,  Holt  V.  191 
Boerum,  Owen  v.  263 
Bogard  v.  Jones,  53 
Bogardus,  Clark  v.  448 
Bogart  V.  The  Steamboat  John  Jay,  117 
Boggs,  Breading  v.  211 

V.  Teackle,  243 
Bogue,  Deal  v.  398 
Bohn  V.  Ileadley,  378 
Boiselet,  Fries  v.  140 
Boker  v.  Crookshank, 211 
Bolin  V.  Iluflnagle,  100 
Boiler,  Hart  v.  205 
Bolton,  Johns  v.  211 

Schatzell  v.  398 
V.  De  Peyster,  347 
V.  Lundy, 193 
Bonaflfe  V.  AVoodbury,  205 
Bond,  Fluck  v.  408 
V.  Smith,  516 


XVI 


INDEX   TO   AMERICAN    CASES   CITED. 


Bonnell,  Hanness  v.  200 
Bonneman  v.  Sidlinger,  422 
Bonney  V.  Seeley,  189 
Bonsall,  Smith  v.  432 
V.  Comlv,  62 
Boody  T.  United'States,  206 
Boone  V.  Sinkler,  354 
Boorman  v.  Jenkins,  509 
Booth,  Babcock  v.  125 
Comegysr.  192 
V.  Campbell,  202,  392 
V.  Northrop,  125 
V.  Smith,  262 
Bopst,  Boydv.  510 
Borden,  Company  v.  386 
Boring,  Hughes  V.  397 
Borrekins  v.  Bevan,  509 
Borrell  v.  Dewart,  72 
Borry  v.  Makepeace,  179 
Borst,  Herriek  v.  193 
V.  Covey,  374 
Bosley  v.  Farquhar,  504 

T.  Porter,  205 
Bossier,  Demi  v.  72 
Bostick  V.  Winton,  351 
Boston,  Cummins  v.  373 

V.  Bodge,  138 
Bostwiek.  Champion  v.  404 

T.  Beach,  200 
Boswell  V.  Green,  94 
Botsford  T.  Sandford,  161 
Boughton  V.  Bank,  195 
Boulton,  Norcross  v.  125 
Bourie,  Lumden  v.  200 
Bourland,  Gibbs  t.  200 
Boutelv.  Owens,  172,  174 
Boutellev.  Melendy,  159 
Boutwell  V.  Mason,  205 
Bovard,  McLaughlin  v.  202 
Bowditch  V.  Green,  190 
Bowdre  v.  Hampton,  390 
Bowen,  Clark  v.  203 

V.  Caldwell,  52 
V.  Burk,  94 
Bower  t.  Tallman,  52 
V.  Tiernan,  192 
Bowers,  Heard  v.  132 
Lovejoy  v.  397 
T.  Bowers,  162 
V.  Hurd,  421 
V.  Jewell,  154 
T.  Stile,  393 
Bowers's  Est.  191 
Bowes  V.  French,  262 
Bowie,  Addison  v.  357 
Carroll  v.  191 
Fouke  V.  206 
Owens  V.  241 
Bowles  V.  Woodson,  144 
Bowman,  Hill  v.  346 

Ridgway  v.  99 
V.  Bailey,  404 
V.  Kennedy,  120 
V.  McKleroy,  105 
Bowman's  Ap.,  354 
Bowser  v.  Bliss,  164 
Boyce,  Pride  v.  191 

Sherman  v.  162 


Boyce   v.  Coster,  383 
Boyd,  Bank  v.  160 
Bvrd  V.  339 
Collins  V.  189 
Hughes  V.  470' 
Keito  V.  125 
Pierson  v.  153 
V.  Bopst,  510 
T.  Boyd,  157 
V.  Browne,  126 
T.  Grant,   196 
V.  Hitchcock,  202 
V.  McConnell,  156 
V.  Mosely,  99 
V.  Talbert,  333 
Boyer  v.  Aurand,  262 

V.  McCulloch,  144 
V.  Williams,  73 
Boyers  V.  Boddie,  160 
V.  Elliott,  384 
Weatherhedd  v.  160 
Boykin  v.  Watson,  390 
Boyle,  Hyatt  v.  507 
V.  Rankin,  52 
V.  Roche,  78 
V.  Zacharie,  241 
Boylston  v.  Greene,  519 
Boyne,  Archer  v.  33 
Boynton,  Turrill  v.  193 

V.  Hubbard,  162 
V.  Rees,  127 
Wright  V.  504 
Bozeman  v.  Bank,  392 
Bracken  v.  Ballentine,  200 
Brackett  v.  Blake,   55 
Bradenbach,  Hammer  v.  133 
Bradbury  v.  Smith,  398 
Bradford,  Ferrall  v.  204 
Mount  V.  243 
Reese  v.  399 
Sawyer  v.  194 
V.  Bush,  507 
Y.  Greenway,  487 
V.  Manly,  509 
V.  Marvin,  190 
Bradhears,  Barrabine  v.  155 
Bradish  v.  Gibbs,  485 
Bradley,  Cook  v.  139 
Davis  V.  99 
Dinsmore  v.  241 
Dobbin  V.  192 
Fay  V.  207 
V.  Burwell,  390 
V.  Hunt,  422  , 

V.  Mitchell,  53 
V.  SpafFord,  190 
Bradstreet  v.  Heran,  119 
Brady,  Hill  t.  208 
Brady,  Thomas  v.  159 

V.  Colhoun,  386 
Braham  v.  Le  Roy  Pope,   134 
Brainard  v.  Cowdry,  444 

V.  McDevitt,   143 
Braman,  Srigg  v.  190 
V.  Hawk,  192 
V.  Hess,  161 
Branch,  Robertson  v.  204 
Brander  v.  Ins.  Co.,  503 


INDEX   TO   AMERICAN    CASES   CITED. 


XVll 


Brandon,  Powell  v.  335 

V.  Bank,  78 
Branning  v.  Taylor,  172 
Brannon,  Qiiarles  v.  161 
Brantley  v.  Thomas,  509 
Braston,  Whiting  v.  67,  69 
Bratten,  Herdman  v.  155 
Bratton  v.  Clawson,  66 
Brawdy  v.  Brawdy,  144 
Bray,  Tahnme  v.  125 

V.  Dudgeon,  373 
Braynard  v.  Marshall,  242 
Brazier,  Allen  v.  133 
Breading  v.  Boggs,  211 
Breasley  v.  Cox,  53 
Breaux,  Lalande  v.  161 
Breed,  Osgood  v.  485 

V.  Hillhouse,  140 
Breen,  Higgins  v   125 
Brengle,  Creager  v.  191 

V.  McClellan,  180 
Brenizer,  Morrow  v.  362 
Brenizet,  Morrow  v.  58 
Brennan,  Osborne  v. 406 
Brenneman,  English  v.  154 
Brenton  v.  Davis,  509 
Brereton,  Shreve  v.  132 
Brewer,  Champion  v.  55 
Curtis  V.  134 
V.  Brewer,  143 
V.  Knapp,  206 
V.  Mills,  191 
V.  Smith,  90,  94 
Brewster,  Jenkins  v.  519 
Patterson  v.  385 
V.  Edgerly,  134 
V.  Hammett,  398 
V.  Hill,  50,  333 
V.  Sterrett,  384 
Wait  V.  204,  404 
Brice  v.  Edwards,  193 
Bridge  v.  Hubbard,  161 
Bridge  Company  v.  Kline,  159 

V.  Shannon,  396 
Bridges  v.  Wood,  376 
Bridgham,  Hunt  v.  193 
Brian,  Grove  v.  191 
Briggs,  Baker  v.  191 

Manwell  v.  125 
Moore  v.  202 
Preston  v.  66,  69 
Townsend  v.  138 
V.  Brown,  72 
V.  Dorr,  518 
V.  Williams,  206 
Brigham,  Coolidge  v   510 
Emerson  v.  509 
v.  Dana,  404. 
V.  Moreau,  160 
V.  Weaver,  105 
Bright  V.  Rowland,  133 
Brimhall,  Upham  v.  160 
Brinager  v.  Phillips,  192 
Brinker,  Roberts  v.  353 
Brinkerhoff  v.  Lawrence,  425 

V.  Marvin,  172,  401 
Brinsley,  Prescott  v.  193 
Briscoe,  Givens  v.  191 


Britain  v.  Israel,  505 
Brittain,  Patton  v.  503 
Brittin,  Freeman  v.  161 
Britton's  Appeal,  63 
Broadfoot,  Gibson  v.  262 
Broadnax,  Suydam  v.  242 
Broadwell  v.  Broadwell,  133 
Brockway,  Chappell  v.  164 
v.  Burnap,  404 
V.  Clark,  133 
Brockenbank,  Davis  v.  72 
Brockenborough,  Richards  v.  262 
Bromley  v.  Elliott,  404 
Bronson  v.  Fitzhugh,  372 
V.  Newberry,  240 
Brooke,  Grubb  v.  178 
Smith  V.  206 
V.  Berry,  53 
V.  AA'^ashington,  384 
Wynn  v.  189 
Brooks,  Fowler  v.  192 
Harris  v.  194 
Jarvis  v.  384,  397 
Lowry  v.  403 
Moore  v.  335 
The  People  v.  491 
V.  Bicknell,  314,  317 
V.  Dent,  374 
V.  Hanford,  54 
V.  Hubbard,  134 
V.  The  Brig  Seneca,  117 
V.  White,  202 
Broomhead,  Donath  v.  98 
Brothers  v.  Cartwright,  362 
Broughten  v.  Badgett,  56 
Browder,  McGrew  v.  498 
Brower,  Manhattan  Company  v.  172 
Brown,  Andrew  v.  383,  408 
Bacon  v.  206,  506 
Bank  v.  206,  375 
Birkhead  v.  192 
Briggs  V.  72 
Case  V.  317 
Cutler  V.  125 
Gossin  V.  190 
Gragg  V.  84 
Gray  v.  392 
Griswold  v.  127 
Harris  v.  374 
Hicks  V.  160,  242 
Howard  v.  193 
Jones  V.  422 
Lonsdale  v.  138 
Love  V.  153 
Milliken  v.  202 
Noyes  v.  55 
Parker  v.  433 
Riggins  V.  192 
Scotien  v.  143 
Smith  V.  202 
Swelt  V.  502 
Thompson  v.  180,  516 
Treadwell  v.  401 
V.  Anderson,  516 
V.  Bank,  55 
V.  Bellows,  132 
V.  Birdsall,  395 
V.  Brown,  423 


XVlll 


INDEX   TO   AMERICAN    CASES   CITED. 


Brown  v.  Collins,  139,  242 
V.  Deloach,  •'{,') 7 
V.  Dillabunly,  240 
V.  Fort,  152 
V.  Harrison,  161 
V.  Jackson,  202 
T.  Kidd,  1!I4 
V.  Lang,  190 
V.  Marsh,  392 
V.  McFarland,  383 
V.  Mott,  lOS 
V.  Murphee,  509 
V.  Pinkhain,  155 
V.  Porter,  516 

V.  Public  Administrator,  180 
T.  Kiggins,  192 
V.  Riker,  1(57 
V.  Sockwell,  357 
V.  Tappan,  159 
V.  Webb,  105 
Wright  V.  486 
Brown's  Appeal,  395 
Browne,  Boyd  v.  126 

Watson  V.  242 
Brownfield,  Baily  v.  189 
Browning  v.  Grady,  394 
V.  Magill,  498 
Brownlow,  Frazier  v.  487 
Brubaker  v.  Okeson,  19S 
Bruce  v.  Davenport,  500 

V.  Lee,  162 
Bruen  v.  Ogden,  53 
Brummett  v.  Golden,  12& 
Brune,  Enders  v.  190. 
Brunnan,  Johnson  v.  201 
Brunson,  Isler  v.  160 

V.  Brunson,  423 
Brush,  Clement  v.  408 

V.  Blanchard,  357 
Brutton,  Banfield  v.  506 
Bryan,  Cornish  v.  55 
Fuller  V.  200 
V.  Bryan,  490 
Weem  v.  72 
Bryant,  Gibbs  v.  189 
Gooch  V.  156 
Gruse  V.  126 
V.  Crosby,  94 
V.  Moore,  501 
Bryson,  Edney  v.  42S 
Buchan  v.  Sumner,  384,  397 
Buchanan,  Bennett  v.  189 
Gordon  v.  501 
Polk  V.  404 
Risley  v.  203 
Toumin  v.  378 
V.  Pue,  427,  445 
Wilson  V.  378 
Buck,  Beeraan  v.  607 
Hewitt  V.  117 
Powell  V.  502 
V.  Albee,  159 
V.  Pike,  255 
V.  Winn,  384 
Buckingham,  Butler  v.  487 

V.  Burgess,  406 
V.  Oliver,  394 
T.  Reeve,  334 


Buckley,  Reed  v.  353 

V.  Buckley,  386 
v.  Furness,  98 
Buckner  v.  Finley,  241 
Budd  v.  Hiler,  72 
Buddicum  v.  Kirk,  203 
Buddington  v.  Stewart,  82 
Buell,  Sparhawk  v.  357 
Buffington  v.  Curtis,  119 
V.  Gerrish,  52 
BufFum,  Griffith  v.  395,  404 

V.  Merry,  89 
Bulkley  v.  Landon,  138 
V.  Wright,  389 
Bull,  Doll  v.  160 

Holden  v.  172 
Ryan  v.  375 
V.  Bull,  346 
V.  Schuberth,  405 
Bullen  V.  McGillicuddy,  202 
Bullett,  Jones  v.  202 
BuUict's  Appeal,  446 
Bullock,  Jones  v.  192 
Burbank,  Greenleaf  v.  144 
v.  Whitney,  346 
Burch,  Thornton  v.  334 
Burchard,  Bank  v.  161 
Burchell  v.  Marsh,  263 
Burd  V.  Burd,  354 
V.  Smith,  210 
Burdett,  Clark  v.  200; 
Burdick  v.  Given,  204 
Burditt  V.  Hunt,  105 
Burgess,  Buckingham  v.  406 
Lugg  V.  160 
V.  Clark,  200 
V.  Gates,  127 
Burgett,  Blystone  v.  105 
Burgoyne  v.  Company,  390 
Burgwin  v.  Hostler,  383 
Burhans,  Hicks  v.  138 
Burk,  Bowen  v.  94 
Burke,  Faunce  v.  133 
v.  Noble,  393 
Burkhart  v.  Sappington,  179 
Burkholder,  Strickler  v.  193 
Burkle  v.  Eckart,  404 
Burley,  Hilton  v.  207 
Burlingame,  Talmadge  v.  192 
Burnap,  Bruckaway  v.  404 
Burne  v.  Moore,  207 
Burnhan  v.  Ayer,  155 

Weekly  v.  138 
Barnley  v.  Lambert,  427 
Burns,  Durden  v.  335 

V.  Bank,  191 
Burnside,  Sampson  v.  144 
V.  Marick,  384 
Burr,  NefF  v.  172 

v.  Duryee,  317 
V.  Sim,  362 
Burrage  v.  Crump,  133 
Burrall  V.  Acker,  398 
Burritt  v.  Burritt,  491 
Burrits  v.  Rench,  504 
Burrows,  Turner  v.  117 

V.  McWhann,  190 
Burry,  Nesbit  v.  86 


INDEX   TO   AMERICAN    CASES   CITED. 


XIX 


Burson  v.  Kincaid,  392 
Burton  v.  Blein,  161 

V.  Stevens.  140 
Burtus  V.  Tisdale,  397 
Burwell,  Bradley  v.  390 
Burzell,  Bagley  v.  192 
Busby  V.  Finn,  160 
Bush,  Adams  v.  172 

Bradford  v.  507 
Mather  v.  242 
V.  Fowler,  204 
V.  Lathrop,  65 
V.  Sheldon,  432 
Bushnell,  Bartholomew  v.  510 
Buss,  AVhite  v.  167 
Bussard,  Whelzel  v.  140 
Bussel,  Pugh  V.  242 
Bussing,  Bailey  v.  140 
Bussy,  Gilmore  v.  204 
Butler,  Penn  v.  381 

Seymour  v.  393 
V.  Buckingham,  487 
V.  Lewis,  172 
V.  Miller,  204 
V.  Page,  66 
V.  Railroad  Co.  57 
V.  Ricketts,  374 
V.  The  Mayor,  262 
Wooden  v.  55 
Butterfield,  Witham  v.  105 
Butterworth  v.  McKinley,  90 
Butts  V.  Dean,  203 
Byerly,  Meyers  v.  162 
Byers  v.  McClanahan,  156 
Byrd,  Bertrand  v.  138 
V.  Boyd,  339 
V.  Gasquet,  179 
V.  Holloway,  441 
V.  Odeur,  262 
Byrne  v.  Byrne,  448 
Byrod's  Appeal,  374 
Byxbie  v.  Wood,  54 


Cabeen  v.  Campbell,  99 
Cabot,  Denny  v.  404 
Welsh  V.  257 
Cadbury  v.  Duval,  365 
Cadet,  Levy  v.  195 
Cady,  Stephens  v.  330 
Gaffe,  Zellweger  v.  153 
Cain,  Bird  v.  200 
Caldwell,  Banker  v.  330 
Bowen  v.  52 
Fitzgerald  v.  178 
Foster  V.  507 
Graff  V.  119 
V.  Garner,  93 
V.  Kinkhead,  448 
V.  Porcher,  508 
V.  Renfrew,  423 
v.  Smith,  511 
V.  Stileman,  383 
V.  Wentworth,  206 
Calef  V.  Foster,  503 
Calhoun  v.  Calhoun,  486 
V.  Vechis,  608 


Calkins  v.  Lockwood,  55 
Call,  Eagan  v.  507 
V.  Gray,  105 
Rossian  v.  206 
V.  Ewing,  441 
Callagan  v.  Hallett,  162 
Calloway,  Pugh  v.  62 
Calvert,  Carter  v.  263 
Turner  v.  160 
Camac,  Fairehild  v.  172 
Cambioso  v.  Moffett,  162 
Cameron,  Bank  v.  502 

v.  McFarland,  162 
Pierce  v.  408 
Thomas  v.  433 
T.  Ward,  143 
V.  Wurtz,  180 
Cammack,  Gillespie  v.  153 
V.  Johnson,  399 
Camp,  Abrams  v.  166 
Arnold  v.  202 
Gillett  V.  357 
Vassar  v.  403 
Vliet  V.  158 
V.  Camp,  105 
V.  Root,  202 
Campbell,  Booth  v.  202,  392 
Cabeen  v.  99 
Cocke  v.  503 
Fisher  v.  601 
Gardner  v.  52 
Hill  v.  189 
Parsons  v.  68,  71 
Vance  v.  471 
Vaughan  v.  508 
V.  Baker,  189 
V.  Canon,  172 
V.  Kent,  172 
V.  Renvviek,  127 
Canal  Company,  McDowell  v.  207 
Randel  v.  262 
V.  Fisher,  66 
Candler  v.  Dinkle,  364 
Canfield,  Hamilton  v.  159 
Sconelle  v.  160 
V.  Ives,  202 
White  v.  241 
Candor's  Appeal,  186,  424 
Cannaday  v.  Shepard,  65 
Cannon,  Taber  v.  503 
Canon,  Campbell  v.  172 
Cantril,  Huston  v.  375 
Cantrill,  Huston  v.  376 
Capehart,  Gums  v.  286,  426 
Capel  v.  McMillan,  348 
Capen  v.  Alden,  207 
Cardwell  v.  Cheatham,  365 
Garland,  Nelson  v.  240 
Carleton  v.  Whitcher,  159 

V.  Woods,  159 
Carley  v.  Wilkins,  607 
Carlisle,  Bankhead  v.  471 
Collins  v.  347 
V.  Wallace,  87 
Carlton  v.  Mill,  196 
Carman  v.  Noble,  140 
Carnley,  Hall  v.  105 
Kemp  v.  408 


XX 


INDEX   TO   AMERICAN   CASES   CITED. 


Carnochan  v.  Gould,  509 
Carnult  v.  Roberts,  144 
Carothers,  Murniy  v.  502 
Carow,  Hoffman  v.  49S 
Carpenter,  Hulibell  v.  195 
V.  Devon,  191 
V.  Heard,  354 
V.  Kins,  194 
V.  Lockhart,  132 
"Weed  V.  504 
Carr,  Hoxie  v.  384,  399 
V.  Allison,  138 
V.  Crain,  347 
V.  Le  Fevre,  56 
McCriiry  v.  203 
Carrington  v.  Didier,  200 
Carroll,  Bank  v.  1 92 

McTavish  v.  206 
,  Siatter  v.  383 

V.  Bowie,  191 
T.  Lee,  373 
V.  Nixon,  140 
V.  Tylor,  162 
Carruth,  Hogshead  v.  200 
Carry  v.  Sarer,  133 
Carsley  v.  Lindsay,  262 
Carson,  Harris  v.  72 

McLain  v.  383 
Mowatt  V.  348 
Satterwhite  v.  178 
Stuart  V.  180 
T.  Baillie,  608 
V.  Blazer,  72 
V.  Clark,  138 
V.  Monteio,  204 
V.  Murray,  376 
Young  V.  444 
Carswell,  Beatty  v.  503 
Carter,  Baldwin  v.  373 
Calvert  v.  206 
Clarkson  v.  395 
Glisson  V.  126 
Gower  v.  133 
Parker  v.  138 
Robert  v.  55 
Scrugham  v.  397 
V.  Calvert,  263 
V.  Connel,  393 
V.  Thomas,  442 
Welsh  V.  507 
Cartwright,  Brothers  v.  362 
V.  Gardener,  134 
V.  AVilmerding,  99 
Caruth  v.  Thompson,  151 
Case  V.  Brown,  317 
V.  Riker,  162 
Cash,  Clement  v.  133 
Cason  V.  Cason,  442 
V.  Cheely,  95 
Cassidy,  McAlpin  v.  504 
Cassily  v.  Meyer,  334,  354 
Cassilly  v.  Rhodes,  72 
Castator,  Reichart  v.  376 
Castleman  v.  Holmes,  205 
Castner  v.  Styer,  200 
Caswell,  Jones  v.  162 
Cathcart,  Aiken  v.  153 

V.  Robinson,  375 


Cathey  v.  Cathey,  347 
Catlin  V.  Gilder,  407 
Caton  V.  Shaw,  161 
Catron,  Gaines  v.  384 
Napier  v.  408 
Caulk,  Wiokes  v.  156 
Causay,  Tyre  v.  507 
Cave,  Costelo  v.  203 
Cavalier,  Fletcher  v.  155 
Cavender  v.  Guild,  179 
Cebra,  Roosevelt  v.  240 
Centre  Valley  Compapy,  Allen  v.  399 
Chace  v.  Hinnian,  189 
Chadbourne,  Dublin  v.  432 
Chadsey  v.  Lewis,  57 
Chaffee  v.  Company,  314 
Chalk  V.  McAlly,  127 
Chamberlain,  Hinds  v.  159 

V.  Badgley,  134 
V.  Madden,  408 
V.  Maitland,  178 
Chambers,  Donaldson  v.  242 
Evans  v.  317 
Haddena  v.  190 
Kennett  v.  162 
Parker  v.  426 
V.  Denie,  173 
V.  Harger,  173 
V.  Hunt,  380 
Champion  v.  Bostwick,  404 

V.  Brewer,  55 
Champlain  Co.,  Cook  v.  67 
Champlin,  Tillinghurst  v.  384,  401 

V.  Champlin,  376 
Chanceller  v.  Wiggins,  510 
Chancey,  Cocke  v.  204 
Chandler,  Cleveland  v.  433 
Snow  V.  394 
^T.  Beldon,  119 
V.  Davidson,  143 
V.  Glover,  140 
Chapin,  Gilbert  v.  345 
Pearsoll  v.  159 
V.  Clemitson,  172 
v.  Potter,  93,  94 
Chapline  v.  Scott.  207 
Chapman,  Everett  v.  395 
Johnston  v.  189 
Martin  v.  262 
V.  Devereaux,  404 
V.  Gray,  485 
V.  Murch,  506 
V.  Steinmetz,  204 
Chappell,  Mason  v.  508 

V.  Brockway,  164 
Charles,  Lidenbender  v.  162 
Charlton  v.  Lay,  510 
Chase,  Allen  v.  262 
Goddard  v.  70 
Jackson  v.  156 
V.  Allen,  134 
V.  Barret,  404 
V.  Lockerraan,  445 
V.  Ralston,  93 
r.  Redding,  423 
Chatterman,  Teomans  v.  162 
Chave,  Pettigrew  v.  153 
Cheatham,  Cardwell  v.  365 


INDEX   TO   AMERICAN   CASES   CITED. 


XXI 


Cheddick  v.  Marsh,  132 
Cheek  v.  Glass,  193 
Cheely,  Cason  v.  95 
Cheep  V.  Wheatley,  125 
Cheeseborough  v.  Millard,  190 
Chegaray,  The  People  v.  489 
Chelsey  v.  Frost,  155 
Cherry  v.  Clements,  487 
Cheshire,  Leary  v.  196 
Chester,  Blinn  v.  202 
T.  Greer,  426 
Cheston  v  Wheelwright,  206 
Chesturn  v.  Johnson,  203 
Chevallier  v.  Wilson,  421 
Chew,  Griffith  v.  393 
V.  Nicklin,  363 
Chew's  Ap.,  353 
ChifFelle,  Whislow  v.  384 
Chidsey,  Siegel  v.  210 
Chighizola  v.  Le  Baron,  353 
Child,  Voorhis  v.  383 
V.  Adams,  308 
Chippenger  v.  Hopbaugh,  162 
Chisin  v.  Woods,  510 
Chollar,  Sage  v.  397 
Chomqua  v.  Mason,  504 
Chouteau,  McQueen  v.  123 
T.  Suydam,  440 
Chrisman,  Turner  v.  140 
Christ,  Snyder  v.  375 
V.  Christ,  284 
Christian,  Davis  v.  365,  384 
V.  Christian,  354 
T.  Dripps,  66 
V.  Ellis.  397 
V.  Smith,  160 
Christler  t.  Meddis,  445 
Church,  Davis  v.  383     • 
Goodrich  v.  200 
Mather  v.  52 
V.  Barlow,  153 
V.  Church,  375 
T.  Knox,  398 
v.  Moore,  189 
V.  Stockton,  365 
Churchill  v.  Perkins,  162 
Churchwardens  v.  Peytavin,  133 
Cilley  V.  Huse,  384 
Ciples  v.  Alexander.  442 
City  V.  Desnoyer,  394 
V.  Johnson,  123 
V.  Merlatt,  207 
v.  Reeves,  389 
Claggett,  Salmon  v.  190,  392 

V.  Kilbourne,  385 
Clapp,  Shippen  v.  156 
Claribon  v.  Goodloe,  390 
Claridge,  Livermore  v.  207 
Clark,  Bain  v.  72 

Brockaway  v.  133 
Burgess  v.  200 
Carson  v.  138 
Dyer  v.  384 
Enew  V.  173 
Harris  v.  421 
Jenkins  v.  193 
Kirby  v.  125 


Clark,  Niblo  v.  192 
Pyle  V.  192 
V.  Adair,  53 
T.  Allee,  398 
V.  Badgely,  161 
V.  Barnwell,  119 
V.  Bogardus,  448 
v.  Bo  wen,  203 
V.  Burdett,  200 
T.  Foxcroft,  189 
V.  Hatch,  242 
V.  Herring,  140 
V.  Hopkins,  171 
V.  Keenan,  125 
V.  Maguire,  140 
V.  Makenna,  486 
V.  Mallory,  78 
V.  Miller,  395 
V.  Pendleton,  143 
V.  Roger,  519 
V.  Rosenda,  240 
V.  Skinner.  52 
V.  Tucker,  144 
Whitall  V.  485 
Wilkes  V.  395 
Wilson  V.  144 
Clarke,  McCraeken  v.  263 

Railroad  Company  v.  204 
V.  Covington,  194 
V.  Howe,  383 
v.  Jenkins,  441 
V.  McClelland,  125 
V.  Pratt,  179 
Clarkson  v.  Carter,  395 
Clason  V.  Morris,  190 
Clay,  Goodloe  v.  191 
Sheftall  V.  518 
V.  Cottrell,  408 
V.  Hart,  362 
V.  Smith,  242 
Clayton,  Davis  v.  200 

Dunham  v.  404 
V.  Warden,  441 
Clawson,  Bratton  v.  66 
Cleason,  Iron  Company  v.  200 
Cleghorn  v.  Bank,  400 
Clemens  v.  Davis,  86,  94,  378 
Clement,  Hall  v.  207 
Miller  v.  72 
V.  Brush,  408 
V.  Cash,  133 
V.  Hadock,  404 
Weimer  v.  507 
Clements,  Cherry  v.  487 

Dunn  V.  156 
Clementson  v.  Williams,  140 
Clemitson,  Chapin  v.  172 
Clemmons,  Oberman  v.  362 
Clemson,  Babb  v.  155 
Clendaniel  v.  Hastings,  158 
Cleveland,  McCauley  v.  404 
Reynolds  v.  395 
Scott  V.  207 
V.  Chandler,  433 
Clevenetine's  Appeal,  335 
Clifton,  Lapice  v.  497 
Clinkenbeard,  Cloud  v.  448 


XXll 


INDEX    TO   AMERICAN   CASES    CITED. 


Clippenger  v.  Cripps,  192 
Cloasen  v.  Shaw,  1(50 
Clopper  V.  Bank,  153 
Close,  Harrison  v.  392 
Cloud  V.  Clinkenbeard,  448 

V.  Dupree,  373 
Clough  V.  Ray,  87 
Clow,  Merrit  v.  200 
Clurg,  Hays  v.  203 
Clute,  Hour  v.  203 
Clyburn,  Stueky  v.  510 
Coachman  v.  Hunt,  57 
Coal  Cc^npany  v.  Dyott,  486 
Coal  Company's  Appeal,  408 
Coalter,  Harkins  v.  375 
Coates,  Perry  v.  200 

V.  Gerlaoh,  374 
V.  Hughes,  431 
Coates's  Appeal,  346 
Coats  V.  Robinson,  487 
Cobb,  Dix  V.  55,  56 
Dows  V.  120 
^Hateh  v.  123 
^piavnes  v.  161 
V.  Titus,  161 
Webster  v.  151 
Cobeau,  Schriver  v.  354 
Coburn,  Atwood  v.  139 

Mixer  v.  508 
Cochran,  Hicks  v.  485 
Temple  v.  200 
Trice  v.  510 
V.  Loring,  200 
V.  Richardson,  503 
Cocke  V.  Campbell,  503 
V.  Chancy,  204 
V.  Trotter,  126 
Cockerill,  Allen  v.  507 
Codd  V.  Codd,  490 
Coder  v.  Huling,  384 
Cody,  Lowe  v.  477 
Coe,  Everitt  v.  403 
V.  Wilson,  200 
Coffield,  AVard  v.  448 
Coffin  V.  Anderson,  78 
V.  Cottle,  262 
V.  Elliott,  341 
V.  Jenkins,  404 
Coker  v.  Crozier,  125 
Colbert,  Cowan  v.  195 
Curan  v.  192 
Colby,  Atkins  v.  99 

Paddock  v.  140 
V.  Copp,  208 
Colcock,  Greenwood  v.  162 
Coleord,  Bank  v.  190 
Cole  County  v.  Augbey,  190 
Cole,  Barfield  v.  105 

V.  Patterson,  335 
T.  Sackett,  203 
V.  Trull,  208 
V.  White,  105 
Colegate  v.  Savings  Institution,  191 
Coles,  Dawson  v.  57 
Harring  v.  357 
V.  Kelsey,  140 
Coleman,  Fletcher  v.  486 
Seltzer  v.  203 


Coleman  v.  Lukens,  263 

V.  Wade,  263 
Colfax,  Debow  v.  72 
Colgate,  Swelt  v.  608 
Colhoun,  Brady  v.  386 

Wheatley  v.  384 
Colladay  v.  Baird,  330 
College  V.  Powell,  374 
Collender,  Hamilton  v.  205 
Collier,  Molyneaux  v.  202 
V.  Slaughter,  471 
Collins,  Brown  v.  139,  242 
Green  v.  348 
Shuraway  v.  339 
V.  Boyd,  189 
V.  Carlisle,  347 
V.  Makepeace,  156 
V.  Merrell,  167 
V.  Ragrew,  167 
V.  Row,  144 
Wylly  V.  486 
Collison  V.  Little,  381 
Collumb  V.  Read,  384 
Colomb  V.  Bank,  371 
Colt,  Gibson  v.  503 

Nutting  V.  404 
Colter  V.  Greenhagen,  138 
Colton,  Terhune  v.  206 
Colts,  Lytle  v.  172 
Colvin,  Reppart  v.  408 
Warford  v.  432 
Colwell,  Tritts  v.  475,  519 

V.  Alger,  442 
Com.  V.  Tuqua.  54 
Combs,  Hodge  v.  501 
Comegys  v.  Booth,  192 

V.  Vasse,  54,  55 
Comfort  V.  Duncan,  72 

V.  Mather,  341 
Comline,  Humphreys  v.  507 
Comly,  Bonsale  v.  52 
Commander,  Gourdin  v.  157 
Commission  Company,  Mann  v.  501 
Commissioners,  Commonwealth  v.  122 
Doyle  V.  167 
Howe  V.  122 
Niles  V.  262 
Reynolds  v.  50,  333 
V.  Perry,  138 
Commonwealth,  Hayes  v.  173 
Mckee  V.  206 
Richards  v.  192 
Speck  V.  205 
Nimmo  v.  180 
V.  Addicks,  490 
V.  Conrad,  173 
V.  Commissioners,  122 
V.  Cox,  196 
V.  Fee,  491 
V.  Haas,  191 
V.  Hamilton,  492 
V.  Harrington,  162 
V.  Letcher,  205 
T.  Lewis,  180 
V.  Martin,  362 
T.  Miller,  178,  191,  203 
V.  Nutt,  489 
V.  Robbins,  167 


INDEX   TO   AMERICAN   CASES   CITED. 


XXlll 


Commonwealth  v.  Sears,  490 

v.  Stauffer,  470 
V.  Vanderslice,  78,  207 
Company,   Burgoyne  v.  390 
Chaffee  v.  314 
Mannv.  161 
Sherman  v.  510 
V.  Company,  407 
V.  Borden,"  386 
V.  Earle,  315 
V.  Foster,  486 
Winans  v.  317 
Compton  V.  Martin,  144 
Comstock  V.  Farnum,  518 

V.  Smith,  138,  204 
Cone,  Whitaker  v.  162 
Congar  v.  James,  263 
Congdon,  Bitts  v.  191 
Conine,  Wilson  v.  397 
Conklin,  Wickham  v.  162 
Conkling  v.  Washington  University,  397,  404 
Conlin,  Maybin  v.  162 
Conn  V.  Conn,  487 
Connell,  Carter  v.  393 
Conner,  Stewart  v.  441 
Conover,  Sears  v.  55 

V.  Conover,  139 
V.  Satchwell,  426 
Conrad,  Commonwealth  v.  173 
Barker  v.  208 
Hopkins  v.  208 
Conroy  v.  Warren,  497 
V.  Woods,  400 
Consequa,  Willing?  v.  204,  389,  392,  507 
Constant,  Hall  v.  205 

Woolley  V.  156 
Converse  v.  Converse,  485 
Conway,  Jarnagin  v.  346 

Rector  v.  440 
Conwell,  Longworth  v.  500 
V.  Dandridge,  156 
Cook,  Bishop  V.  105 

Coltv.  362,  491 
Freeman  v.  370 
Gibson  v.  314 
Newport  v.  357 
Norton  v.  240 
Phillips  V.  398 
V.  Bradley,  139 
V.  Champlain  Co.,  67 
V.  Moffat,  241 
V.  Mosely,  507 
V.  Patterson,   78 
V.  Thayer,  105 
Ware  V.  353 
Cooke,  Hargreaves  v.  206 
V.  Husbands,  486 
Cookson,  Hyde  v.  87 
Cooley,  Hill  v.  155,  156 
Coolidge,  Blanchard  v.  405 
V.  Blake,  168 
V.  Brigham,  510 
Coonley,  Anderson  v.  501 
Cooper,  Lightburn  v.  510 
Ludlow  V.  384, 
Munroe  v.  497 
Robbins  v.  401 


Cooper,  Robinson  v.  510 
Shaw  v.  316 
v.  Cooper,  334 
V.  Crane,  127 
V.  Hepburn,  354 
Cooper's  App.,  400 
Cope,  Dawes  v.  119 
Johnson  v.  508 
V.  Smith,  193 
Copeland,  Barrett  v.  125 
Parsons  v.  66 
Richardson  v.  66 
Copp,  Colby  v.  208 
Coppage  V.  Alexander,  471 
Coppedge  v.  Threadgill,  477 
Corbit,  0-Conner  v.  127 
Cordle  v.  Cordle,  334 
Corley  v.  Wilkins,  506 
v.  Williams,  162 
Corliss  V.  McLagin,  66 
Cornan  v.   State,  192 
Cornelius  v.  Cornelius,  490 
Cornell,  Dyer  v.  363 

Jackson  v.  397 
V.  Lovett,  471 
V.  Masten,  392 
Cornett  v.  Doolittle,  200 
Cornish,  Jeffrey  v.  203 

V.  Bryan,  55 
Cornwell,  Nelson  v.  285 
V.  Gould,  205 
Cornwell's  App.,  189 
Corrington,  Haynes  v.  193 
Corser  v.  Craig,  518 
Corwin,  Beninger  v.  510 

Middlebrook  v.  67,  71 
Corwithe,  Penny  v.  156 
Coryell's  App.,  380 
Costello  v.Cave,  203 
Coster.  Boyce  v.  383 

Lorillard  v.  362 
Coston,  Wallace  v.  486 
Coterill  v.  Vandusen,  406 
Gotten,  Mitchell  v.  161 
Cottle,  Coffin  V.  262 
Cotton,  Singleton  v.  421 
Cottrell,  Clay  v.  408 
Couch  V.  Mills,  394 
Coudry,  Hubbell  v.  180 
Coulon  V.  Morton,  162 
County  V.  Armstrong,  56,  498 
V.  Hackett,  498 
V.  Harding,  127 
V.  Stete,  123 
Courcier  v.  Ritter,  504 
Cousins,  Parker  v.  161,  202,  393 
Coutant  V.  Schuyler,  422 
Covell  V.  Hitchcock,  98 
Covenhoven,  De  Hart  v.  263 
Covey,  Borst  v.  374 
Covington,  Clark  v.  194 
Cowan  v.  Adams,  502 
V.  Colbert,  195 
V.  Shields,  519 
V.  Wheeler  504 
Cowell,  R.  R.  Co.  V.  504 
Cowden,  Bank  v.  171 

Williams  v.  471 


XXIV 


INDEX   TO   AMERICAN   CASES   CITED. 


Cowdin  V.  Perry,  353 
Cowdry,  Brainerd  v.  444 
Cowing,  Netson  v.  603 
Cowles,  Dougal  v.  203 
Cowls  V.  Cowls,  490 
Cos,  Breasley  v.  53 

Commonwealth  v.  195 
Griffith  V.  155 
Haynesworth  v.  347 
Schofield  V.   200 
V.  Delano,  404 
V.  Hoffman,  504 
V.  Marrow,  63 
T.  McBurney,  385 
T.  McKenney,  426 
V.  Robinson,  503  « 

Coxe,  Ewer  v.  319 
Cozzens,  Wheelock  v.  5S 
Cozzins  V.  Whitiiker,  508 
Crabb  v.  Bank,  178 
Crabtree  v.  Green,  262 

Warren  v.  169 
Craft,  Holland  v.  362 
Crafts,  Lamb  v.  507 
Craggin,  Balcolm  v.  138 
Craig,  Corser  v.  518 
Peters  v.  262 
Smith  V.  93 
r.  Craig,  262,  421 
T.  Dale,  72 
V.  Leslie,  362 
V.  State,  162 
Walker  y.  440 
Williams  v.  260 
Crain,  Carr  v.  347 
Craine,  Massey  v.  138 
Crammond,  Perry  v.  153 

Phillips  V.  385 
Crandell,  Barnes  v.  178 
Crandon,  Bacon  v.  262 
Crane,  Cooper  v.  127 
Parker  v.  138 
T.  Ailing,  389,  392 
V.  French,  408 
Crary,  Bank  v.  105 

Williams  v.  448 
Cravarth  v.  Plympton,  126 
Crawford,  Dalzell  v.  365 
Marcy  v.  158 
Patterson  v.  57 
T.  Barkley,  504 
V.  Merrel,  159 
T.  Smith,  93 

T.  The  William  Penn,  259 
T.  Wilson,  508 
Creager  v.  Brengle,  191 
Creath  v.  Sims,  194 
Creditors,  Dorsey  v.  152 
Cremer  v.  Higginson,  206 
Crenshaw,  Edmonds  v.  441 

Harris  v.  127 
Crepps,  Clippenger  v.  192 
Cresson  v.  Stout,  67 
Creswell,  Gillespie  v.  189 

V.  Blank,  384 
Crews  V.  Pendleton,  72 
Crim,  Edick  v.  510 
Crippen,  Fremont  v.  123 


Crisler  v.  McCoy,  206 
Crist  V.  Crist,  426 
Crittenden,  Bartlette  v.  330 
Crocker  v.  Man,  53 

V.  Whitney,  55 
Croft  V.  Moore,  191 
V.  White,  156 
Crocker,  Reed  v.  349 

V.  Gullifer,  78 
Cromwell,  Maccubbin  v.  371 
V.  Holly,  194 
V.  Lovett,  204 
Crook,  Nolen  v.  200 

V.  AVillianis,  162 
Crooker,  Smith  v.  154 

V.  Crooker,  400 
Crookehank,  Boker  v.  211 
Crosby,  Bank  v.  192 
Barker  v.  335 
Bryant  v.  94 
Gray  v.  134 
V.  Wendell,  471 
V.  Wyatt,  192 
Cross,  Law  v.  504 
Crossland  v.  Murdock,  432 
Crosswell  v.  Allis,  105 
Crostwaight  v.  Hutchinson,  375 
Crougbton  v.  Duval,  193 
Crouse,  Lyne  v.  486 
Crowninshield,  Sturges  v.  240 
Croy,  Snyder  v.  125 
Crozier,  Coker  v.  125 
Cruger  v.  Armstrong,  497 
v.  Cruger,  485 
V.  Douglass,  485 
T.  Haywood,  357 
V.  Heyward,  335 
Crugett,  Rivers  v.  510 
Crummie,  Norris  v.  193 
Crump,  Burrage  v.  133 

V.  McMurtry,  190 
Crumpston  v.  McNair,  189 
Cruse  V.  McKee,  348 
Crutwell  V.  De  Rossett,  408 
Cubberly,  Mount  v.  125 
Cuculla,  Perotin  v.  503 
Culber,  Danforth  v.  139 
Culbertson,  Reany  v.  502 

Speelman  v.  440 
Cullum  V.  Emanuel.  190 
Culver,  Allen  v.  206 

Mundy  v.  134 
Culvertson,  Parker  v.  189 
Cumming,  Gardiner  v.  383 

V.  Williamson,  486 
Cummings  v.  Cummings,  357 

V.  Hackley,  204 
Cummins,  Dennis  v.  133 

Richardville  v.  55 
V.  Boston,  373 
Cunard  v.  Insurance  Company,  259 
Cunningham,  Bank  v.  153 
Bassett  v.  262 
V.  Ashbrook,  93 
V.  Garvin,  138 
V.  Hall,  509 
V.  Spier,  607 
T.  Wrenn,  193 


INDEX   TO   AMERICAN   CASES   CITED. 


XXV 


Cunningham,  West  v.  508 
Cunnington,  Dott  v.  335 
Curan  v.  Colbert,  192 
Curcier  v.  Pennock,  508 
Curie,  Steele  v.  162 
Currie  v.  Steele,  425 
Currier  v.  Howard,  57 
Curtis,  BufSngton  v.  119 
Greenwood  v.  160 
Kellog  V.  133 
T.  Brewer,  134 
V.  Hubbard,  204 
Curvey,  Walker  v.  200 
Gushing  v.  Wyman,  203 
Cusbman,  Noyes  v.  404 
Cuthbert  v.  Cuthbert,  445 
Cutler,  Lupton  v.  200 
Tingley  v.  134 
V.  Brown,  125 
V.  Emery,  196 
V.  How,  133 
Weld  V.  106 
Cutter,  Reed  v.  312,  316 
V.  Doughty,  348 
V.  Thomas,  406 
Whittemore  v.  316 
Cutting  V.  Gilman,  421 

AVhitemarsh  v.  72 
Cutts,  Belton  v.  139 

Price  V.  207 
Cutwright.  Green  v.  72,  73 
Cuyler  v.  Ensworth,  190 


D. 

Dahlgreen  v.  Duncan,  401 
Daily  v.  Litchfield,  133 
Dain,  Wells  v.  262 
Dakin,  Holden  v.  507 

V.  Williams,  132 
Dale,  Craig  v.  72 

Holland  v.  519 
Miehener  v.  421 
V.  Lincoln,  422 
Dall,  Mitchell  v.  206 
Dallam  v.  Wampole,  485 
Daly,  Feeny  v.  139 
Dalzell  V.  Crawford,  365 
Dana,  Brigham  v.  404 
V.  Bank,  210 
V.  Lull,  125 
Dandridge,  Conwell  v.  156 

V.  Dorrington,  471 
Dane  v.  Baldwin,  498 
Danforth  v.  Culber,  139 
V.  Evans,  166 
Daniel,  Kinnard  v.  374 

United  States  v.  125 
V.  Daniel.  53,  263 
V.  Nelson,  408 
Whiting  V.  157 
Daniels,  Bank  v.  205 

Barbaren  v.  56,  497 
V.  Hatch,  203 
V.  Pond,  67,  71 
Danville  Bridge  Co.  v.  Pomeroy,  133 


Darby  v.  Mayer,  432 
Dare,  Linney  v.  383 
Darling,  Levfis  v.  284 

v.  Simpson,  380 
Darlington  v.  Gray,  203 
Dashiel  v.  Dashiel,  336 
Dashiell,  McCullough  v.  397 
Davenport,  Bruce  v.  500 
Ives  v.  503 
McGran  v.  335 
V.  Hardeman,  191 
V.  Lacan,  200 
V.  Mason,  138 
V.  Sleight,  167 
V.  Woodbridge,  518 
Weire  v.  54 
Davidson,  Chandler  v.  143 
V.  Graves,  374 
V.  Kelly,  408 
Davies,  Emerson  v.  330,  371 

Thompson  v.  162 
Davis,  Bakpr  v.  66,  70 
Bennett  v.  172 
Brenton  v.  509 
Clemens  v.  86,  94,  378 
Hitch  V.  421 
Hubbard  v.  193 
Lindsay  v.  508 
Mackie  v.  189 
Marshall  v.  52 
McClanahan  v.  284,  487 
Napier  v.  471 
Ormsbee  v.  408 
Pintard  v.  196 
Presley  v.  357 
Ross  v.  285,  427 
Salmon  v.  381 
Stickney  v.  445 
Tuthill  V.  161 
V.  Anable,  204 
T.  A  New  Brig,  82 
V.  Bradley,  99 
V.  Brockenbank,  72 
V.  Christian,  365,  384 
V.  Church,  383 
V.  Clayton,  200 
V.  Desauque,  202 
v.  Herrick,  375 
V.  Hill,  94 
V.  Maxwell,  262 
V.  Meeker,  507 
V.  Morris,  172 
V.  Murray,  510 
V.  Noaks,  203 
V.  Payne,  378 
T.  Steiner,  140 
V.  The  People,  192 
V.  Thompson,  72 
Wiener  v.  210 
Davison,  Allen  v.  141 
Dawes,  Hodges  v.  403 
V.  Cope,  119 
V.  Howard,  357 
V.  Shed,  139 
Dawney,  Morris  v.  125 
Dawson  v.  Bank,  193 
V.  Coles,  57 
V.  Follen,  316 


XXVI 


INDEX   TO   AMERICAN   CASES   CITED, 


Day,  Hartshorn  v.  198 
Kerr  v.  55 
Smith  V.  191 
V.  Hale,  IfiO 
V.  Perkins,  66 
V.  Seal,  204 
Dayton,  Meail  v.  242 
V.  Trull.  204 
De  Barante  v.  Gott,  373 
De  Camp,  Holmes  v.  203 
De  Cook,  A.lams  v.  432 
De  Grann,  Bank  v.  203 
De  Greet,  Lanpdon  v.  318 
Marshall  v.  383 
De  Hart  v.  Covenhoven,  263 
De  Laistre,  De  Soby  v.  162 
De  Peyster,  Bolton  v.  347 
De  Kossett,  Crutwell  v.  408 
De  Soby  v.  De  Laistre,  162 
De  Soer,  Anderson  v.  65 
De  Turk,  Giaeff  v.  347 
De  Witt,  Westerlo  v.  423 
De  Wolf  V.  Johnston,  160 
De  Wolf,  Low  V.  119 
De  Zeng  v.  Bailey,  393 
D'Baun,  Beebe  v.  53 
D'Hauteville  Case,  490 
D'Oench,  State  v.  106 
D'Wolf  V.  Harris,  52 
Deal  V.  Bogue,  398 
Dean,  Butts  v.  203 

Hampton  v.  208 
V.  Mason,  507 
V.  AVilliams,  207 
Dearing  v.  Lightfoot,  505 
V.  Moffit,  139 
Deaver  v.  Rice,  72 
Deavor,  Watts  v.  196 
Deberry  v.  Adams,  195 
Debow  V.  Colfax,  72 
Decan  v.  Shipper,  119 
Decrew  v.  Monis,  125 
Dedham  v.  Nantick,  491 
Deering,  Shelton  v.  154 
Defreeze  v.  Trumper,  510 
Degraffenreid  v.  Scruggs,  66 
Dehart  v.  Wilson  501 
Deichman's  Appeal,  180 
Deifendorf,  Elwood  v.  190 
Delafield,  State  v.  500 
Delano,  Cox  v.  404 

V.  Scott,  316 
Delie,  Lewin  v.  501 
Delmonico  v.  Guillaume,  384 
Deloaeh,  Brown  v.  357 
Delonoy  v.  Hutcheson,  384 
Demi  v.  Bossier,  72 
Deming  v.  Foster,  508 

V.  Williams,  376 
Demoss,  Robertson  v.  180 
Denie,  Chambers  v.  173 
Denig,  Roemer  v.  172 
Denni,  McAllister  v.  393 
Denis  v.  Alexander,  94 
V.  Leclere,  330 
V.  Reder,  192 
Denison,  Bigelow  v.  504 
V.  Tyson,  503 


Denman,  Freeborn  v.  262 
Dennie,  iNavlor  v.  98 
V.  ilart,  204 
Denning  v.  Smith,  501 
Dennis  v.  Cummins,  133 
Denny,  Nichols  v.  354 

V.  Association,  304 
V.  Cabot,  404 
V.  Lincoln,  162 
V.  Lyon,  191 
Dent,  Brooks  v.  374 
Edelen  v.  448 
Montague  v.  67 
Dentlee,  Spruneberger  v.  202 
Denton  v.  Duplessis,  5(),  4U7 
V.  Erwin,  162 
V.  Livingston,  200 
V.  Wilcox,  162 
Deny  v.  Palmer,  153 
Depeyster,  Wheelwright  v.  498 
Depuy  V.  Stewart,  139 
Derman,  Hart  v.  207 
Dermott,  Moncure  v.  159 
V.  Wallack,  134 
Desauque,  Davis  v.  202 
Desban,  Hallett  v.  405 
Descadilla  v.  Harris,  203 
Desha  v.  Holland,  395 
Deshen  v.  Bigelow,  94 
Desnoyer,  City  v.  394 
Despatch  v.  Bellamy,  66 
Despatch  Packets  v.  Manuf.  Co.,  504 
Deterich  v.  Lenan,  201 
Detroit,  Griggs  v.  371 
Devane  v.  Fennell,  fi4 

V.  Larkins,  353 
Deveau  v.  Fowler,  397 
Devereaux,  Chapman  v.  404 
Devan,  Carpenter  v.  191 
Dewart,  Borrell  v.  72 
Dewees,  Rothwell  v.  408 
Dewes  v.  Miller,  166 
Dewitt  V.  Osborne,  182 
Dey  V.  Williams,  448 
Deyell  v.  Odell,  194 
Deyer,  Jones  v.  421 
Dialogue,  Pennock  v.  316 
Dick  V.  Lindsay,  87 
Dickenson  v.  Lee,  348 

V.  Parvis,  341 
Dickerson,  Neilson  v.  507 
V.  Gordy,  162 
V.  Seelye,  120 
Dickey,  Kelso  v.  354 
Stultz  V.  72 
V.  Sleeper,  262 
Dicking,  Haralson  v.  162 
Dickinson  College  v.  Church,  206 
V.  King,  204 
V.  Smith,  182 
Dickson  v.  Forsyth,  86 
Didier,  Carrington  v.  200 
Dieterick,  Andrew  v.  94 
Diffenderffer  v.  Winder,  370 
Diffendorfer  v.  Jones,  72 
Dillahunty,  Brown  v.  240 
Ricks  v.  506 
Dillard  v.  Moore,  508 


I 


4 


INDEX   TO   AMERICAN    CASES   CITED. 


XXVll 


Dilleye,  Van  Epps  v.  202 
Dillingham,  Montgomery  v.  194 

V.  Jenkins,  333 
Dillon  V.  Wright,  53 
Dinehart,  Nettleton  v.  128 
Dingley,  Seaver  v.  53 
Dinkle,  Candler  v.  354 
Dinsmore,  Thatcher  v.  203 
V.  Bradley,  241 
Directors  v.  Anderson,  122 
Dishmain,  8ale  v.  383,  407 
Divine  v.  Mitchum,  384 
Dix  V.  Cobb,  55,  56 
Dixon,  Bank  v.  193 
V.  Ewing,  191 
V.  Moyer,  318 
V.  Myers,  93 
V.  Thatcher,  126 
Doak  V.  Swann,  403,  407 
Dob  V.  Halsey,  403 
Dobbin,  Hardy  v.  200 

V.  Bradley,  192 
Dobbs  V.  Gullidge,  127 
Dobney,  Thornton  v.  193 
Dodd,  Allen  v.  162 
Dodridge,  Hewes  v.  502 
Dodge,  Boston  v.  138 
Gregory  v.  404 
Griggs  V.  334 
Outwater  v.  93 
V.  Adams,  138 
V.  Waterbury,  262 
Dodworth  v.  Jones,  52 
Doe  V.  Postmaster,  193 
Dogan  V.  Ashbey,  204 
Doggett,  Halliday  v.  380 
Dohrmann,  Sutcliffe  v.  399 
Dolan,  Lancaster  v.  486 
V      Dole  V.  Lincoln,  421 
Doll  V.  Bull,  160 
Dominick  v.  Moore,  354 
V.  S.ayre,  346 
Donaldson,  Appleton  v.  153 
Yates  V.  153 
V.  Bank,  384 
V.  Chambers,  242 
V.  Kendall,  408 
V.  Winter,  433 
Williams  v.  486 
Donath  v.  Broomhead,  98 
Doner  v.  Stauffer,  397 
Doniphan,  Rice  v.  408 
Donk,  Anderson  v.  200 
Donnally,  Edgar  v.  384 
Donnelly,  Stewart  v.  502 
Donner's  Appeal,  354 
Donoghue,  Trask  v.  433 
Doolin  V.  Ward,  162 
Doolittle,  Blink  v.  392 
Cornett  v.  200 
Robinson  v.  206 
Dord,  Bevine  v.  509 
Dorman  v.  Bigelow,  143 
Dormick  v.  Reichenback,  433 
Dorr,  Briggs  v.  518 
Dorrance  v.  Scott,  486 

Vanhorne  v.  155 
Dorrington,  Dandridge  v.  471 


Dorsett,  Moter  v.  161 
Dorsey,  Dyer  v.  133 

V.  Creditors,  152 
V.  Gasaway,  206 
V.  Jackman,  510 
Dorwin,  Austin  v.  202 
Dott  V.  Cunnington,  335 
Doty  V.  Gerham,  70 
V.  Mitchell,  486 
V.  Wilson,  138 
Dougal  V.  Cowles,  203 
Dougherty,  Soule  v.  503 

Stewart  v.  507 
Thompson  v.  374 
White  V.  397. 
V.  Stephenson,  440 
Doughty,  Cutter  v.  348 
Stewart  v.  72 
Stillwell  V.  338 
V.  Owen,  162 
Douglass,  Cruger  v.  485 
Hanner  v.  191 
Leland  v.  504 
Nichols  V.  192 
V.  Morford,  125 
V.  Satterlee,  441 
V.  Winslow,  398 
Dow,  Greely  v.  192 

V.  Sayward,  398 
Whipple  V.  359 
Downey,  Smith  v.  421 
V.  Hicks,  204 
V.  Hotchkiss,  143 
Dows  V.  Cobb,  120 

V.  Greene,  100,  119 
V.  Rush,  119 
Doyle  V.  Commissioners,  167 
Dozier,  Gregory  v.  56 
Draher,  Martin  v.  205 
Drake,  Ross  v.  362 

Stowell  V.  381 
Taylor  v.  144 
V.  Newton,  144 
V.  Pell,  362 
Draper  v.  Bissel,  408 

V.  Romeyn,  194 
Draugher,  Emanuel  v.  404 
Drayton  v.  Drayton,  353 
Drennen  v.  House,  406 
Dresser  v.  Ainsworth,  510 

V.  Dresser,  422 
Drew,  Nash  v.  503 
Driesbach,  App  v.  58 
Drinker,  Ross  v.  404 
Drinkhard,  Ingram  v.  179 
Driukwater  v.  Jordan,  393 
Webster  v.  138 
Dripps,  Christian  v.  66 
Drum,  Nesmuth  v.  139 
Drury  v.  Grace,  334,  471 
Dublin  V.  Chadbourne,  432 
Dubois's  Appeal,  408 
Duburjue,  Gelpcke  v.  56,  159,  498 
Duck,  Poe  V.  242 
Dudgeon,  Bray  v.  373 
Dudley,  Marshall  v.  178 

V.  Littlefield,  386 
Duffee  V.  Mason,  507 


XXVlll 


INDEX   TO  AMERICAN   CASES   CITED. 


Duffy  V.  Duffy  411 

V.  Insurance  Company,  375 
V.  Shockey,  133,  1(54 
Dulaney,  Kinniken  v.  57 
Dumont,  Herbert  v.  193 
Kellogg  V.  202 
Duncan,  Comfort  v.  72 

Dahlgreen  v.  401 
Eldridge  v.  163 
United  States  v.  180 
V.  Hoges,  157 
V.  Reid,  192 
V.  Spear,  78 
DuncanBon  v.  McClure,  162 
Dundas,  Hoopes  v.  471 

V.  Sterling,  192 
Dunham,  Smith  v.  156 

V.  Clayton,  404 
V.  Rogers,  405 
Dunklin  v.  Wilkins,  56 
Dunlap  V.  Berry,  94 
Dunlop,  Hoffman  v.  392 
V.  Gregory,  134 
Dunn,  Archer  v.  380 
•  Bank  v.  501 

V.  Clements,  156 
V.  Snell,  55,  57,  519 
V.  Thorp,  373 
Duplesis,  Denton  v.  56,  497 
Dupree,  Cloud  v.  373 
Durant,  Andrews  v.  86 
Durden,  Kirkbride  v.  173 

V.  Burns,  335 
Dure!  v.  Wendell,  394 
Durkee,  Kelsey  v.  66 
Durvin,  Barger  v.  196 
Duryee,  Burr  v.  317 
Dustin  V.  Newcomer,  123 
Duval,  Cadbury  v.  365 
Croughton  v.  193 
V.  Bank,   371 
Dwelly,  Martin  v.  486 
Dwight,  Gilman  v.  164 
Dyckman  v.  Kernochan,  371 
Dyer,  Blanchard  v.  380 
Tyler  v.  262 
V.  Clark,  384 
V.  Cornell,  362 
V.  Dorsey,  ]33 
V.  Lewis,  507 
Dyott,  Coal  Company  v,  486 
Dykes,  Pilgrim  v.  193 


E. 


Eagan  v.  Call,  507 
Eager,  Stanton  v.  98 
Eagle  V.  Eichelberger,  94 
Eakin  v.  Harrison,  339 
Eames,  Godfrey  v.  318 
Earle,  Company  v.  315 
Early,  Postmaster  v.  160 

V.  Mahon,  140,  159 
Earnest  v.  Parke,  139 
Earp's  Ap.,   338 
Easter  v.  White,  144 
Eastman  v.  Wright,  55,  56,  519 
Walker  v.  139 


Eastwick,  Farnum  y.  196 
Eaton,  Evans  v.  316 
Sewell  V.  94 
AVorcester  t.  162 
V.  Eaton,  262 
V.  Lincoln,   202 
V.  Whitaker,  143 
V.  Worthington,  498 
Eberman  v.  Reitzel,  162 
Eby,  Schumacher  v.  100 
Eckart,  Burkle  v.  404 
Zeigler  v.  418 
Eckert,  Streeper  v.  378 
V.  Eckert,  144 
V.  Mace,  144 
Edey,  Smalley  v.  204 
Eddy,  Hall  v.  354 
Edelen  v.  Dent,  448 
Eden,  Stuart  v.  138 

Warden  v.  518 
Edes  V.  Goodridge,  207 
Edgar  v.  Donnally,  384 

Wood  V.  200 
Edgell  V.  Stanford,  161 
Edgerly,  Brewster  v.  134 
V.  Emerson,  191 
Edick  V.  Crim,  510 
Edmonds  v.  Crenshaw,  441 

Waring  v.  423 
Edney  v.  Bryson,  426 
Edsell,  Paine  v.  155 
Edwards,  Bank  v.  192 
Brice  v.  193 
Hart  v.  508 
Jackson,  v.  485 
McCraw  v.  421 
Morange  v.  57 
Norfleet  v.  157 
Ramsey  v.   262 
V.  Pitzer,  408 
Edward's  Ap.,  363 
Effinger  v.  Henderson,  207 
Egberts  v.  Wood,  383,  400 
Egell  V.  Franklin,  503 
Ehle  V.  Judson,  138 
Ehringhaus,  Williams  v.  380 
Eichelberger,  Eagle  v.  94 

Jenkins  v.  87 
Eisenhart  v.  Slaymaker,  380 
Eislord,  Sconton  v.  139 
Elam,  Morgan  v.  486 
Elder,  Parker  v.  380 

Samraerell  v.  119 
Elderkin,  Wells  v.  262 
Eldred  v.  Hazlett,  55 
Eldredge,  Jenkins  v.  371 
Eldridge  v.  Duncan,  153 
V.  Eldridge,  353 
Elfe  V.  Gadsden,  144 
Elkins  V.  Parkhurst,   162 
Ellerbee  v.  Ellerbee,  357 
Ellicot,  Grant  v.  153 
Ellig  V.  Naglee,  370 
Elliot,  Bagwell  v.  433 
Boyers  v.  384 
Bromley  v.  404 
Coffin  v.  341 
George  v.  339 


INDEX   TO   AMERICAN   CASES   CITED. 


XXIX 


Elliot,  Miller  v.  133 
State  V.  66 
V.  Holbrook,  392 
V.  Sleeper,  203 
V.  Smith,  353 
Ellis,  Christian  v.  397 
Forsythe  v.  610 
Patterson  v.  334,  354 
Pursel  y.  189 
Stover  V.  155 
V.  Barker,  486 
V.  Beale,  167 
V.  Ellis,  346 
V.  Robinson,  160 
Wagner  v.  488 
Ellison  V.  Jackson,  138 
Elton,  Nicholson  v.  125 
Elwood  V.  Deifendorf,  190 
Elworth  V.  Mitchell,  160 
Ely,  Smith  V.  310 
V.  Hair,  408 
V.  Karmany,  172 
Emanuel,  Cullum  v.  190 

V.  Bird,  383,  397 
V.  Draugher,  404 
Emerson,  Bank  v.  66 

Edgerly  v.  191 
V.  Brigham,  509 
V.  Davis,  330,  371 
V.  Manufacturing  Company,  503 
Emery,  Cutler  v.  196 
Haven  v.  94 
V.  Neighbour,  485 
V.  Tichout,  206 
Emlen,  McCarty  v.  397 
Emmet,  Whitney  v.  312,  316 
Emery  v.  Greenough,  160,  241 

V.  The  Judge,  347 
Ender  v.  Scott,  507 
Enders  v.  Brune,  190 
V.  Enders,  446 
Endress,  Shunk  v.  375 
Enew  v.  Clark,  173 
Engler,  Walker  v.  134 
English,  Ridgway  v.  138 

V.  Foote,  66 
Ennis,  Bank  v.  374 
Ensign  v.  Kellog,  55 

V.  Woods,  384 
Ensworth,  Cuyler  v.  190 
Eppes,  Royall  v.  335 

V.  Randolph,  190 
Erb's  Appeal,  190 
Erie  v.  Tracy,  262 
Erickson  v.  Willard,  345 
Ericson,  Hulburt  v.  353 
Erwin,  Denton  v.  162 
Starnes  v.  506 
V.  Maxwell,  507 
V.  Saunders,  139 
Erwin's  Ap.,  385 
Eschbach,  Baltimore  v.  502 
Estell  V.  Goodloe,  200 
Estill,  Miller  v.  399 
Etheridge  v.  Bell,  354 
Etiner  v.  Shope,  263 
Eustace,  Hatch  v.  125 
Evans,  Danforth  v.  106 


Evans,  McGuire  v.  445 
Morris  v.  191 
Reed  v.  144 
Rowland  v.  433 
Sisk  V.  166 
Tate  V.  503 
T.  Begley,  172 
V.  Chambers,  317 
V.  Eaton,  316 
V.  Inglehart,  73 
V.  Jones,  63 
V.  Jordan,  318 
V.  Kingsberry,  362 
V.  Nagley,  161 
V.  Norris.  153 
V.  Potter^  502 
V.  Secrest,  475 
Eve,  Hannay  v.  161 

V.  Moseley,  202 
Everett,  Hasking  v.  398 
Saltus  V.  498 
Taul  y.  133 
v..  Chapman,  395 
V.  Coe,  403 
Everitt,  Van  Doren  v.  72 
y.  Knapp,  172 
V.  Lane,  426,  445 
Everly  v.  Rice,  191 
Ewe,  Stevens  v.  93 
Ewer  V.  Coxe,  319 
Ewing,  Ashford  v.  58 
Call  V.  441 
Dixon  V.  191 
V.  Smith,  486 
V.  Standifer,  335 
V.  Tees,  144 
Ex  parte  Crouse,  491 
Decker,  157 
Foster,  82 
Hewitt,  490 
Kerwin,  157 
Quiney,  67 
Schumpert,  489 
Vasques,  262 
Wells,  376 
Zeigenfuss,  240 
Exter  V.  Odwine,  346 
Eyre  v.  Golding,  276 
Eyth,  Walker  v.  211,  400 
Ezzell,  Monroe  v.  395 


F. 

Fadden  v.  Turner,  105 

Fagan,  Smith  v.  390 

Fairbanks  v.  Bloomfield,  105 

Fairchild  v.  Camac,  1 72 
v.  Holly,  206 

Fairly  v.  Kline,  362 

Falconer  v.  Montgomery,  262 

Falea,  Baker  v.  52 

Musson  V.  159 
V.  Mayberry,  162 

Fanshor  v.  Stout,  102 

Fant  V.  Wilson,  100 

Fauty  V.  Kline,  353 


XXX 


INDEX    TO    AMERICAN    CASES    CITED. 


Faris,  Triprg  v.  510 
Farlee  v.  Farlee,  155 
Farley,  Jones  v.  502 

V.  Ilustenbaden,  140 
Farman,  Wallace  v.  205 
Farmar,  MeFarland  v.  94 

8liivey  v.  125 
Farnam,  Bean  v.  263 
Farnham,  Anderson  v.  262 
V.  O'Brien.  138 
Farnworth,  Peters  v.  503 
Farnum,  Conistock  v.  518 
V.  Eastwick,  196 
Farns worth  v.  Sharp,  156 
Farquhar,  Bosley  v.  504 

Manufacturing  Company  v.  507 
Farr  v.  Gist,  508 
Farrar,  Hanley  v.  139 

V.  Stackpole,  66 
V.  United  States,  160 
Farwell,  Inbusch  v.  408 

V.  Jacobs,  58 
Faull  V.  Tinsman,  55 
Faunce  v.  Burke,  133 
Faust,  Hall  v.  487 
Fawcetts  v.  Kiinmey,  191 
Fay  V.  Bradley,  207 

V.  Smith,  155 
Fearson,  Nicholson  v.  159 
Fee,  Commonwealth  v.  491 
Feeny  v.  Daly,  139 
Fegely,  Heckert  v.  405 
Felch,  Matthews  v.  406 
Felder,  Nelson  v.  179 
Fellowes  v.  Prentiss,  192 
Fellows,  Pinney  v.  374 
Shirley  v.  153 
Feltz,  Simpson  v.  403 
Fencher,  Morgan  v.  610 
Fenlon,  Navigation  Company  v.  263 
Fennell,  Devane  v.  94 
Fenner,  Turner  v.  143 
Fenwick,  Berksdale  v.  189 

V.  Phillips,  202 
Ferguson,  Blakeney  v.  143 
Finney  v.  173 
Laughlin  v.  189 
V.  Staver,  181 
V.  Sweeney,  126 
V.  Thomas.  106 
V.  Turner,   192 
Wilson  V.  511 
Worthington  v.  190 
Ferrall  v.  Bradford,  204 
Ferree,  Gardner  v.  193 
Ferrell,  Ledford  v.  144 
Ferrett,  Attvill  v.  330 
Ferris,  Bank  v.  200 

V.  Mann,  262 
Ferson  v.  Monroe,  397 
Fessenden,  Wildes  v.  202 
V.  Willey,  242 
Field,  Lehigh  Co.  v.  87,  94 
V.  Holland,  205 
V.  Howell,  333 
V.  Runk,  144 
Filley  v.  Phelps,  397 
Fillmore,  Russell  v.  55 


Filson  V.  Ilimes,  159 
Finch,  Huntington  v.  155 
V.  Rogers,  284,  426 
Findley,  Ilea  ton  v.  66 
V.  Bank,  195 
Woodley  v.  335 
Finley,  Buckner  v.  241 
Gardner  v.  70 
Finn,  Busby  v.  160 

V.  Barclay,  166 
Finney  v.  Ferguson,  173 
Firt,  House  v.  507 
Fish  V.  Roseberry,  509 

V.  Tank,  509 
Fishburne  V.  Saunders,  178 
Fisher,  Canal  Co.  v.  56 

Hemmenway  v.  179 
Hurlt  V.  362 
Kauffman  v.  394,  408 
Peck  V.  385 
Scott  V.  206 
Scribner  v.  242 
Stevens  v.  160 
V.  Campbell,  501 
V.  Hyde,  242 
V.  Pollard.  511 
V.  Stayton,  242 
V.  Wheeler,  241 
V.  Whoolery,  52 
Fisk,  Fox  V.  501 

V.  Fowler.  134 
V.  Herrick,  398 
Fiske  V.  Foster,  242 
Fister  V.  Beale,  125 
Fitch  V.  Forman,  381 
V.  Hail,  404 
V.  Harrington,  404 
V.  Peckham,  448 
V.  Waite,  200 
Fitzgerald,  Hart  v.  380 

V.  Caldwell,  178 
Fitzhugh,  Bronson  v.  392 

Wiman  v.  121 
Fitzpatrick,  Kinley  v.  507 

V.  Fitzpatrick,  156 
Fitzsimons  v.  Baum,  161 
Flanagan  v.  Insurance  Co.,  56 

V.  Wetherill,  178 
Flecknor  v.  Bank,  160 
Fleeman  v.  McKean,  94 
Fleet,  Saxton  v.  57 
Fleming,  Stiles  v.  376 

V.  Slocum,  508 
V.  Townsend,  378 
Fletcher,  Bank  v.  190,  203 
Foster  v.  373 
Nave  V.  202 
Wat.son  V.  167 
V.  Cavelier,  155 
V.  Coleman,  486 
V.  Gamble,   192 
V.  Pratt,  56 
Flickinger,  Okinson  v.  263 
Flint,  Hewlet  v.  86 

V.  Pattee,  424 
Floyd,  Hollinsworth  v.  191 

Strange  v.  380 
Floyds  V.  Goodwin, 191 


INDEX    TO   AxMERICAN    CASES   CITED. 


XXXI 


Fluck  V.  Bond,  408 
Flynn,  Gothard  v.  144 
Foard  v.  Womack,  163 
Foggart  V.  Blackweller,  507 
Foley  V.  McKeegan,  132 
Folger,  Stilley  v.  374 
Follain  v.  Orillian,  207 
Follen,  Dawson  v.  316 
Follett,  Martindale  v.  156 

V.  Smith,  203 
Folsoni  V.  Marsh,  330 
Folwell,  Thomas  v.  486 
Fonda,  Van  Bracklin  v.  509 
Fones  v.  Rice,  374 
Foot,  Hawley  v.  203 
Foote,  English  v.  66 

Silsbee  v.  312,  318 
Ford,  Ljgon  v.  263 

Saving  Bank  v.  304 
V.  Ford,  154,  445 
V.  Keen,  262 
V.  Keith,  189 
V.  Stuart,  57 
Fordyce,  Baker  v.  192 
Forgue,  Abel  v.  392 
Forman,  Fitch  v.  381 
Forney  v.  Benedict,  140 
Forrest  v.  Robinson,  487| 
Woolwich  V.  160 
Forsyth,  Dickson  v.  86 
Hopkins  v.  380 
V.  Matthews,  378 
V.  Rathbone,  362 
Forsythe  v.  Ellis,  510 
V.  Price,  72 
Fort,  Brown  v.  152 
Fortier,  McFadden  v.  207 
Foster,  Anderson  v.  160 
Calef  V.  503 
Company  v.  486 
Deming  v.  508 
Fiske  V.  242 
Hoffman  v.  498 
Valentine  v.  140 
Wetherbee  v.  67 
V.  Trustees,  190 
V.  Alston,  491 
V.  Caldwell,  507 
V.  Fletcher,  73 
V.  Hooper,  390 
V.  Sinkler,  518 
V.  Walker,  194 
Fouke  V.  Bowie,  206 
Fourniquet,  Perkins  v.  lf9 
Fowle,  Pierpont  v.  322 
Fowler,  Fisk  v.  134 
Fuller  V.  510 
Deveau  v.  397 
Griffith  V.495 
King  V.  72 
V.  Brooks,  192 
V.  Bush,  204 
V.  Throckmorton,  162 
Fox,  Furness  v.  354 
Judd  V.  52 
V.  Fisk,  500 
V.  Mensch,  162 
Foxcroft,  Clark  v.  189 


Foxon,  Marvin  v.  143 
Fraley  v.  Bispham,  509 
Frances,  Tobias  v.  67 
Franklin,  Egell  v.  503 

V.  Vanderpool,  204 
Washburn  v.  280 
Wilt  V.  62 
Eraser  v.  Tenants,  504 
Frasier,  Poure  v.  504 
Frazier,  Arnold  v.  200 

V.  Brownlow,  487 
T.  Frazier,  172,  347 
V.  Billiard  94,  98 
V.  Hyland,  207 
V.  Thompson,  159 
Frear  v.  Hardenburgh,  138 
Frederick,  Rhoads  v.  192 
Freeborn  v.  Denman,  262 
Freeman,  Hargrove  v.  141 
Newlin  v.  485 
v.  Brittin,  161 
V.  Cook,  370 
V.  Hill,  373 
V.  Newton,  55 
V.  Tompkins,  72 
Voorhis  V.  66,  70 
Fremont  V.  Crippen,  123 
Freese,  Whitman  v.  507 
Freesler,  Richards  v.  161 
French,  Bank  v.  193 
Bowes  V.  262 
Crane  v.  408 
Pigou  V.  189 
V.  Bank,  153 
V.  Lovejoy,  397 
V.  Merril,  125 
V.  Price,  204 
Woodruff  V.  200 
Freshwater  v.  Nichols,  52 
Frets  v.  Frets,  262 
Frey,  Sweigart  v.  335 

V.  Kirk,  242 
Fries  v.  Boiseiet,  140 
V.  Watson,  178 
Frink  v.  Green,  392 
Friott,  Treasurer  v.  390 
Frisbie  v.  Larned,  202 
Frost,  Chelsey  v.  155 
V.  M'illard,  105 
V.  Wood,  504 
Fronty  v.  Fronty,  347,  426 
Fry  V.  Miller,  106 
Frye,  Adams  v.  155 

Whitmer  v.  155 
Fulford  V.  Johnston,  202 
Fullam  V.  Stearns,  66 
Fullenwidder,  Simpson  v.  161 
Fuller,  Holland  v.  383 

Peirce  v.  133,  164 
Quinn  v.  153 
Trull  V.  66 
V.  Bryan,  200 
V.  Fowler,  510 
V.  Heath,  66 
V.  Paige,  105 
Fullerton's  Appeal,  172 
Fulton  V.  Fulton,  354 

V.  Matthews,  193 


XXXll 


INDEX   TO   AMERICAN   CASES   CITED. 


Furber,  Postmaster  v.  206 
Furiuan  v.  Miller,  SOS 
Furness  v.  Fox,  354 
Furniss,  Buckley  v.  98 


G. 


Gadsden,  Elfe  v.  144 
V.  Lord,  191 
Gaffield  V.  Iliipgood,  67 
Gage,  Hotchkiss  v.  507 

V.  Rogers,  72 
Gaillard,  State  v.  508 
Gaines  v.  Catron,  384 

V.  McKinley,  503 
V.  Poor,  376 
Gainey  v.  Sexton,  180 
Galbraith  v.  Galbraith,  144 

V.  Gedge,  384 
Gale  V.  Ward,  66 
Gallagher  v.  Roberts,  203 
V.  Waring,  509 
Gallaud,  Taylor  v.  392 
Gallego  V.  Gallego,  448 
Gallis  V.  Kirby,  200 
Galloway  v.  Hughes,  407 
Gaily,  Matthey  v.  394 
Galway  v.  Webb,  263 
Gamble,  Fletcher  v.  192 
Gamblin  v.  Walker,  57 
Gamewell,  Hommell  v.  189 
Gammon  v.  Howe,  133 
Garden,  Hartzfield  v.  162 
Gardener,  Cartwright  v.  134 
Gardiner  v.  Gumming,  383 

V.  Gardiner,  485 

V.  Gault,  433 

V.  Gorham,  203 

V.  Hust,  203 

V.  Printup,  445 

V.  Smith,  397 
Gardner,  Smith  v.  242 

V.  Adams,  54 

V.  Campbell,  52 

V.  Ferree,  193 

V.  Finley,  70 

V.  Marcy,  159 

V.  The  Ship  New  Jersey,  82 

V.  Towsey,  138 
Garen,  Roberts  v.  138 
Garland  v.  Lockett,  138 
Garner,  Caldwell  v.  93 

Maise  v.  155 
Garnie,  Robert  v.  206 
Garrett  v.  Macon,  365 
V.  Stuart,  138 
Garrington,  Palmer  v.  502 
Garvin,  Cunningham  v.  138 
Gary,  Wellington  v.  192 
Gasquet,  Byrd  v.  179 
Gass  V.  Stinson,  193,  206 
Gassaway,  Horsey  v.  206 
Gasset,  Lelane  v.  67 
Gaston  v.  Barney,  208 
Gates,  Burgess  v.  127 
V.  Gates,  52 


Gatewood,  Towell  v.  506 

V.  Palmer,  178 
Gault,  Gardiner  v.  433 
Venning  v.  508 
Gaunt  V.  Tucker,  422 
Gay,  Adams  v.  160 
V.  Bidwell,  105 
V.  Gay,  285,  426 
V.  Lemele,  180 
Gay's  Case,  50 
Gayle  v.  Martin,  381 
Gaylerv.  Wilder,  314,  316 
Gaylord,  Stanley  v.  127 
Gedge,  Galbraith  v.  384 
Gee,  Blunt  v.  471 

V.  Overby,  394 
Geeseamen,  Hower  v.  210 
Geigor,  Harnsberger  v.  192 
Gellett  V.  Sweat,  155 
Gelpcke  v.  Hubuque,  56,  159,  498 
Gelston,  Sands  v.  139 
Gentry,  Hocker  v.  354,  362 
George  v.  Elliott,  339 
Gerham,  Huty  v.  70 
Gerker,  Horstman  v.  55 
Gerlach,  Coates  v.  374 
German  v.  German,  335 
Gerrish,  Buffington  v.  62 

V.  Ayres,  262 
Gethen,  Mcllvaine  v.  470 
Gettings,  Pennington  v.  421 
Getty  V.  Shearer,  155 
Williams  v.  501 
Gheen,  Worrall  v.  157 
Gibbs,  Bradish  v.  485 

Musgrove  v.  161,  202 
The  People  v.  126 
V.  Bourland,  200 
V.  Bryant,  189 
V.  Linsley,  501 
V.  Marsh,  345 
V.  The  Texas,  258 
Giberton,  Alcock  v.  164 
Gibson,  Alexander  v.  240 
Bank  v.  190 
Smith  V.  503 
V.  Broadfoot,  262 
V.  Colt,  503 
T.  Cook,  314 
V.  Stearns,  161 
V.  Stevens,  398 
V.  Walker,  486 
Giddings  v.  Seward^  446 
Gifford,  Murdock  v.  66 
V.  Allen,  192 
V.  Thorn,  354 
Gilbert,  Arnold  v.  471 
Ball  v.  159 
V.  Anthony,  157 
V.  Chapin,  345 
V.  Henck,  189 
V.  Sutliff,  370 
Gilbreath  v.  Alban,  445 
Gilbreth,  Vining  v.  93 
Gilchrist  v.  Marrow,  507 

V.  Moore,  54 
Gilder,  Catlin  v.  407 
Gilead  v.  Smith,  203 


INDEX   TO   AMERICAN    CASES   CITED. 


XXXIU 


Giles,  Nottingham  V.  159 
Gilett  V.  Balconi,  72 
Gilkyson  v.  Larne,  140 
Gill,  Aubic  V.  178 

Glenn  v.  2-H',  399 
Glum  V.  397 
V.  Kuhn,  406 
V.  Read,  357 
V.  Rice,  207 
Gilleland,  Miller  v.  155 
Gillespie,  Parraentier  v.  172 
V.  Cammack,  153 
V.  Creswell,  189 
V.  Wood,  122 
Gillett,  Sprague  v.  504 

.    V.  Camp,  357 
Gilman,  Amory  r.  167 
Cutting  V.  421 
V.  Dwight,  164 
V.  Hill,  93 
Gilmer  v.  Blackwell,  182 
Gilmore,  Gorgius  v.  105 

Huntington  v.  421 
Wilbur  V.  127 
V.  Bussy,  204 
V.  Land  Company,  399 
Gilpatrick  v.  Hunter,  393 
Gilpin  V.  Temple,  406 
Girard,  Sylvester  v.  78 
Gist,  Farr  v.  508 
Rice  V.  167 
Given,  Burdick  v.  204 
Givens  v.  Briscoe,  191 
V.  Rodgers,  166 
Gladding,  Stevens  v.  331 
Glancy,  Johnston  v.  143 
Glass,  Cheek  v.  193 
V.  Beach,  139 
v.  Reed,  510 
Glasgow,  Musgrave  v.  193 
Glassell,  Pollock  v.  485 
Glenn,  Harrington  v.  178 
Powell  V.  335 
V.  Gill,  241,  399 
V.  Humphreys,  240 
V.  Smith,  202 
Glesson  v.  Carter,  126 
Glover,  Chandler  v.  140 
Hendrick  v.  56 
Wilson  V.  193 
V.  Austin,  380 
Glum  V.  Gill,  397 
Goad  V.  Hurts,  501 
Goddard  v.  Chase,  70 

V.  Johnson,  354 
Godfrey,  Greene  v.  159 
Smith  v.  160 
Thorndike  v.  501 
V.  Eames,  318 
Godfroid,  Lemonier  v.  353 
GofF,  Reeves  v.  263 
Golden,  Bruminett  v.  125 

V.  Price,  240 
Golder  v   Ogden,  94 
Golding,  Eyre  v.  276 
Goldsmith,  Berthold  v.  404 

Webb  V.  202 
Golt,  Kane  v.  302 


Golt   v.  Cook,  362 
Gooch  V.  Bryant,  156 
Good,  Martin  v.  156 
Goodale,  Stowell  v.  105 

V.  Holdridge,  162 
V.  Wheeler,  504 
Goodloe,  Claribon  v.  390 
Estele  V.  200 
Tudor  V.  192 
V.  Clay,  191 
Goodman  v.  Griffin,  193 
Goodnow  V.  Smith,  394 
Goodrich,  Tom  v.  189 

V.  Church,  200 
v.  Jones,  71 
V.  Proctor,  365 
Goodridge,  Edes  v.  207 

V.  Rodgers,  127 
Goodwin,  Eloyds  v.  191 
Lamb  v.  202 
Miller  v.  374 
Palmer  v.  241 
Ryan  V.  316 
V.  Richardson,  398 
Goodyear  v.  Matthews,  317 

V.  Watson,  190 
Googins  V.  Gilmore,  105 
Gookin  r.  Graham,  510 
Gordon,  Merrick  v.  405 

V.  Buchanan,  501 
V.  Price,  202 
Gordy,  Dickerson  v.  162 
Gore,  Bank  v.  407 

Boardman  v.  407 
Goret,  Boardman  v.  157 
Gorham,  Gardiner  v.  203 
Lynden  v.  398 
Samuels  v.  93 
Gorkin,  Shaw  v.  204 
Gorman,  Bank  v.  210 
Gossen  v.  Brown,  190 
Gothard  v.  Flynn,  144 
Gott,  De  Barante  v.  373 

Rush  V.  167 
Gougler,  Marshall  v.  156 
Gould,  Andover  v.  138 
Bachus  V.  330 
Carnochan  v.  509 
Cornwall  v.  205 
Jackson  v.  157 
Jacques  v.  255 
Lee  V.  53 
Little  V.  331 
Washburne  v.  316 
V.  Gould,  55,  189,  393 
Gourdin  v.  Commander,  157 
Govan,  Bank  v.  194 

V.  Binford,  193 
Gower  v.  Carter,  133 

V.  Saltmarsh,  133 
Grace,  Drury  v.  334,  471 
Grady,  Browning  v.  394 
V.  Robinson,  406 
Graeff  v.  De  Turk.  347 
Graff  V.  Caldwell,  119 
Grafton,  Andover  v.  504 
Gragg  v.  Brown,  84 
Graham,  Gookin  v.  510 


XXXIV 


INDEX    TO    AMERICAN   CASES   CITED. 


Graham   Lester  v.  508 

Ste])hens  v.  155 
V.  Bickhara,  133 
V.  Graham,  262 
V.  Ilainilton,  262 
T.  Holt,  157 
V.  Hunt,  n9 
V.  Newton,  178 
T.  State,  182 
V.  Vinning,  12T 
Gram  v.  v'>tebbins,  279 
Grandin  v.  Le  Roy,  15S 
Grant,  Boyd  v.  196 
Police  V.   122 
V.  EUieot,  153 
V.  Hook,  365 
T.  Ludlow,  55 
T.  McLester,  162 
V.  Raymond,  317 
Grasselli  v.  Lowden,  133,  164 
Grattan  v.  Appleton,  421 
Gratz,  Jennings  v.  509 

Prevost  V.  155 
Graves,  Barnard  v.  204 
Davidson  r.  374 
Pahlman  v.  401 
Simpson  v.  374 
Timberlake  v.  334 
Van  Vechten  v.  518- 
V.  Graves,   175 
T.  Webh,  190 
V.  Worrall,  1S2 
Gray,  Armstrong  v.  153. 
Bank  V.  404 
Call  V.  105 
Chapman  v.  485 
Darlington  v.  203. 
Higginson  v.  160' 
Hook  v.  159 
Limehouse  v.  508 
Parrish  v.   193 
Wiley  v.  374 
T.  Brown,  392 
T.  Crosby,  134 
v.  Hawkins,  44ft 
V.  Holdship,  67 
T.  James,  317 
V.  Lawridge,  13^ 
T.  Monroe,  240 
T.  Palmer,  385 
T.  Russell,  330 
T.  Wilson,  262,  381 
Graysons  v.  Richards,  15T 
Greely  v.  Dow,  192 
T.  Smith,  258 
v.  Willcocks,  56 
Green,  Boswell  v.  94 

Bowditeh  v.  190 
Boylston  V.  519 
Crabtree  v.  262 
Frink  v.  392 
Haight  V.  127 
McLain  v.  508 
Perry  v.  153 
Robinson  v.  406 
Swett  V.  519 
United  States  v.  48& 
Wade  V.  191 


Green,  Williams  v.  134 
V.  Beals,  408 
V.  Cutwright,  72,  73 
V.  Collins,  348 
V.  Kemp,  190 
V.  Osborn,  339 
V.  Sarmiento,  204 
V.  Wood,  123 
Greenawalt  v.  Kreider,  193 
Greene,  Dows  v.  100,  119 
v.  Godfrey,  159 
V.  Mumford,  370 
Greenhagen,  Colter  v.  138 
Greenleaf,  Hilliard  v.  243 
Odlin  V.  189 
V.  Burbank,  144 
Greenough,  Emory  v.  160,  241 

V.  Wiggington,  487 
Greenongh's  Appeal,  180 
Greer,  Chester  v.  426 
Warden  v.  120 
Greeves  v.  McAllister,  138 
Greenway,  Bradford  v.  487 
Greenwood,  Hotchkiss  v.  318 
Womack  v.  354 
V.  Colcock,  162   . 
V.  Curtis,  160 
Gregg,  Lamme  v.  507 
V.  Bethea,  354 
V.  Sanford,  106 
Gregory,  Baker  v.   140 
Dunlop  V.  134 
Robinson  v.  408 
V.  Bewley,  161 
V.  Dodge,  404 
V.  Dozier,   56 
V.  Thomas,  203 
Grider  v.  Payne,  190 
Grier  v.  Hood,  408 
Griffin,  Goodman  v.  193 
Griffith  V.  BufFum,  395,  404 
V.  Cox,  155 
V.  Fowler,  498 
V.  Griffith,  375 
V.  Grogan,  394 
V.  Ingledew,  80,  119 
Griffiths,  Laflin  v.  66 
Griggs  V.  Detroit,  371 
V.  Dodge,  334 
Grimke  v.  Grimke,  347,  487 
Griswold,  Kellogg  v.  404 
V.  Brown,  127 
V.  Piatt,  240 
V.  Waddington,  162 
Groff  V.  Levan,  72 
Grogan,  Griffith  v.  394 
Groom,  Vincent  v.  162 
Grosholz,  Warnick  v.  144 
Gross,  Bank  v.  155 
Grosvenor  v.  Austin,  397 

V.  Bank,  200 
Grout,  Parker  v.  65,  56 
Grove,  Smith  v.  125 
V.  Brien,  191 
V.  McCalla,  140 
Grover,  Barney  v.   190 
V.  Grover,  422 
V.  Hoppock,  194 


INDEX    TO   AMERICAN   CASES   CITED. 


XXXA' 


Groves,  Boarman  v.  487 
Grow,  Lord  v.  509 
Grubb,  Belcher  v.   200 

V.  Brooke,  178 
Grundy,  Roland  v.  498 
Gruse  v.  Bryant,  126 
Guery  v.  Vernon,  335  ^ 

Guice,  Lea  v.  395 
Guild,  Cavender  v.  179 

Hubbard  v.  384 

Sawin  v.  318 

Wheeler  v.  497 
Guilford  v.  Smith,  99 
Guillaume,  Dehnonieo  r.  384 
Guillou,  Humphreys  v.  155 
Guion  V.  Guion,   357 
Gulick  V.  Ward,  162 
GuUidge,  Dobbs  v.  127 
Gullifer,  Crocker  v.  78 
Gums  V.  Capehart,  285,  426 
Gundacker,  Slaymaker  v.  205 
Gunn,  Skinner  v.  503 

V.  Tunnehell,   191 

Westcottv.  105 
Gurley  v.  Hillstine,  202 
Gurney,  United  States  v.  133 
Guthart,  Kline  v.  125 
Guthrie  v.  Wickliffe,  207 
Workman  v.  504 
Guy  V.  Mcllree,  211 

V.  Tams,  139 
Gwinn  v.  Whitaker,  178,  207 

H. 

Haas,  Commonwealth  v.  191 
Habersham  v.  Roderigues,  510 
Hacker  v.  Perkins,  205 
Hackett,  Lawless  v.  172 

Mercer  Co.  v.  56 
County  V.  498 
V.  Manlove,  105 
Hackley,  Cummings  v.  204 
James  v.  202 
V.  Patrick,  390 
Hadden,  McCandiess  v.  383 
Haddens  v.  Chambers,  190 
Hadley,  Perkins  v.  390 

Torry  v.  204 
Haddock,  Clement  v.  404 
Haggart  v.  Morgan,  263 
Haggins  v.  Peck,  390 
Hagner,  Towers  v.  485 
Haight,  Ballentine  v.  240 

V.  Green,  127 
Hail,  Fitch  v.  404 
Hair,  Ely  v.  408 
Haile,  Mason  v.  240 
llaldeman,  Bank  v.  162 
Vaugh  V.  67 
Hale,  Baldwin  v.  241 
Day  V.  160 
Iron  Company  v.  503 
Pitts  V.  125 
V.  Henderson,  162 
V.  Henrie,  385 
V.  Huntley,  90,  93 
V.  Ross,  242 


Hale  V.  Russ,  155 
Haley,  Baker  v.  160 
Hall,  Bank  v.  155 
Bangs  V.  139 
Barrett  v.  317 
Bisbee  v.  50,  333 
Cunningham  v.  509 
Lacy  V.  384 
Miller  v.  242 
Norment  v.  404 
Owings  V.  504 
Pattison  v,  207 
Rose  V.  202 
Street  v.  204 
Vanderburgh  v.  404 
V.  Carnley,  105 
V.  Clement,  207 
V.  Constant,  205 
V.  Eddy,  364 
V.  Faust,  487 
V.  Hall,  179,  276,  284,  400 
V.  Law,  173 
V.  Sayre,  180 
V.  Snowhill,  105  ' 
V.  Thing,  118 
V.  Wiles,  312 
Halleck  v.  Mixer,  125 

V.  AValbridge,  125 
•  Williams  v.  371 
Williamson  v.  189 
Hallenbrake,  Arnold  v.  501 
Hallett,  Callagan  v.  146 
Low  V.  263 
Olden  V.  240 
V.  Desbau,  405 
V.  Holmes,  192 
Halliday  v.  Doggett,  380 
Hallowell  v.  Phipps,  348 
HalloweU's  Est.,  180 
Halls,  Barrett  v.  507 
Halsa  V.  Halsa,  144 
Halsey,  Dobb  v.  403 
Halstead,  Watkins  v.  138 
Hamer  v.  Kirkwood,  178 
Hamilton,  Commonwealth  v.  492 
Graham  v.  262 
Herchew  v.  164 
Wilcher  v.  178 
V.  Bishop,  375 
V.  Benbury,  206 
V.  Canfield,  159 
V.  CoUender,  2t)5 
V.  Overton,  133 
V.  Summers,  408 
Hamlet,  Amber  v.  94 
Hammer  v.  Bradenbach,  133 

V.  Rochester,  207 
Hammersley  v.   Lambert,  383 
Ilammett,  Brewster  v.  398 
Norris  v.  393 
v.  Anderson,  241 
Hammon  v.  St.  John,  383 
Hammond  Bank  v.  167 

Roberg  v.  336 
Steamboat  v.  203 
V.  Hammond,  445 
v.  Hopping,  161 
Hamot,  Spires  v.  207 


XXXVl 


INDEX    TO   AMERICAN   CASES   CITED. 


Hampton,  Bowdre  v.  o90 
ghehiin,  v.  193 
V.  Deiin,  208 
V.  Levy,  190 
V.  Matthew?,  603 
Ilonchuian,  Lewis  v.  153 
Haiullej',  Ilnrrison  V.  139 
llamly,  Sandford  v.  500 
llaner's  Apjieal,  172 
ILanford,  Brooks  v.  54 
Ilankinson,  Perrine  v.  40i 
Hanks  V.  McKee,  508 
Hanley  v.  Farnir,  139 
Ilnnnay  v.  Eve,  161 
llanner  v.  Douglass,  191 
Ilanness  v.  Bonnell,  200 
Ilannum  v.  Spear,  365 
Hanover  v.  Turner,  141 
Hanrick,  Bank  v.  193 
Hanson,  Rohan  v.  207 
Hapgood,  Galfield  v.  67  . 

V.  Houghton,  141 
Haralson  v.  Dicking,  102 
Harbold  v.  Kuntz,  140 
Harcum  v.  Hudnall,  362 
Hardeuaan,  Davenport  v.  191 
Hardenburg,  Freer  v.  138 
Harding,  County  v.  127 
Hardy  v.  Dobbin,  200 

V.  Metzgar,  498 
Hare  v.  Monetrie,  242 
Harger,  Chambers  v.  173 
Hargons  v.  Stone,  509 
Hargraves  v.  Cooke,  206 
Hargrove  v.  Freeman,  141 
Harker  v.  Conrad,  208 
Harkins  V.  Coalter,  S75 
Harkness  v.  Sears,  70 
Harlan  t.  Harlan,  52,  66,  126 

V.  Moriarty,  200 
Harmon,  Pitzer  v.  190 
Harmstead,  Arrison  v.  156 
Wallace  V.  156 
Harnes,  Ayers  y.  157 
Harnesberger  v.  Geiger,  192 
Harper  v.  Phelps,  346 

Walt  V.  162 
Barring  v.  Coles,  357 
Harrington,  Barnard  t.  126 

Commonwealth  v.  162 
Fiteh  V.  404 
Sleighter  v.  442 
V.  Glenn,  178 
V.  Rich,  442 
Harriott,  Peek  v.  503 
Harris,  Bentley  v.  378 

Deseandilla  v.  203  < 

D'Wolf  V.  52 

Jordan  v.  93 

Murdoch  v.  06,  70 

Stephens  v.  186 

Woodward  v.  123 

V.  Brooks,  194 

V.  Brown,  374 

V.  Carson,  72 

V.  Clark,  421 

V.  Crenshaw,  127 

V.  Harris,  487 


Harris  v.  Lindsay,  202 
V.  Pratt,  99 
V.  Ross,  162 
y.  Runnels,  162 
V.  Sims,  380 
V.  Smith,  94 
V.  Wynne,  191 
Harrison,  Burrows  v.  93 
Brown  v.  161 
Eakin  v.  339 
Horry  District  v.  157 
Rinehart  v.  302 
V.  Close,  392 
V.  Handley,  139 
V.  Harrison,  179 
y.  Lane,  193 
y.  Tiernans.  158 
V.  Wilcox,  201 
Harrisons  v.  Harrisons,  346 
Harrod,  Keener  v.  500 

V.  Lafarge,  152 
Ilarsen,  Merriam  v.  485 
Hart,  Archer  v.  186 
Clay  V.  362 
Dennie  v.  204 
Linton  v.  339 
Primrose  v.  207 
Stout  V.  445 
Wilmerding  v.  84 
V.  Bailie,  203 
V.  Boiler,  205 
V.  Derman,  207 
V.  Edwards,  508 
V.  Fitzgerald,  380 
V.  Rector,  144 
V.  Wright,  508 
Hartman,  Morrison  v.  194 
Hartshorn  v.  Day,  198 
Hartzfield  v.  Garden,  162 
Harwood  v.  Hildreth,  172 
V.  Jones,  383 
y.  Smethurst,  53 
Hasbrouck  v.  Tappen,  134 
Haskell  V.  Raval,  371 
Haskin  v.  AVoodward,  66 
Haskins,  Seamen  v.  203 
V.  Everett,  398 
Hastings,  Clendaniel  v.  158 
Hatch,  Bank  v.  192 
Clark  V.  242 
Daniels  v.  203 
Holland  v.  157 
V.  Cobb,  123 
V.  Eustice,  125 
V.  Mann,  162 
V.  Smith,  114 
Hatchell  v.  Odom,  138 
Hattier,  Trapnell  v.  53 
HaufiFv.  Howard,  384 
Haughton,  Beers  v.  240 

V.  Bailey,  381 
Hauser  v.  Shore,  364 
Haven,  Stearns  v.  406 

V.  Emery,  94 
Hawes  v.  Lawrence,  507 
Hawk,  Braman  v.  192 
Hawke,  Popline  v.  432 
Hawkens,  Blount  y.  143 


INDEX    TO   AMERICAN    OASES    CITED. 


XXXVll 


Hawkens  v.  Appelby,  408 
V.  Berry,  506 
V.  Ridenhour,  179 
V.  Skegg,  72 
V.  AVelch,  160 
Hawkins,  Gray  v.  440 
Hawley  v.  Foot,  203 

V.  James,  362 
Hawthorn,  Patterson  v.  354 
Hayden  v.  Marmaduke,  370 
Hayes,  Beale  v.  132 

Methuen  v.  504 
V.  Miles,  371 
V.  Ward,  191 
Haylebaker  v.  Reeves,  140 
Haynes  v.  Cobb,  161 

V.  Corrington,  193 
V.  Hunsicker,  93 
Haynesworth  v.  Cox,  347 
Hays  V.  Clurg,  203 

V.  Commonwealth,  173 
V.  Jackson,  180 
V.  Lasater,  380 
V.  Lynn,  603 
V.  McClung,  185 
T.  Mouille,  98 
V.  Steamboat,  191 
V.  Stone,  202 
Hayward,  Armstrong  v.  393 

Beach  v.  395 
Haywood,  Cruger  v.  357 
Hazelhursts,  Vanuxem  v.  242 
Hazelstine  v.  Miller,  503 
Hazelton,  Irwin  v.  179 
Hazlett,  Eldred  v.  55 
Hazzard  v.  Hazzard,  406 
Head,  Meany  v.  52 

V.  Manners,  138 
Headley,  Bohn  v.  378 

V.  Kirby,  421 
Heard,  Carpenter  v.  354 

V.  Bowers,  132 
Hearn  v.  Kiel,  203  . 
Hearne  v.  Kevan,  426 
Heart  v.  Johnson,  189 

Zent  V.  196 
Heath,  Fuller  v.  66 

Ilildreth  v.  310 
Horsey  v.  383 
V.  Page,  101 
V.  Wells,  516 
V.  Withington,  485 
V.  AVright,  330 
Heaton  v.  Findlay,  66 
Hebb  V.  Hebb,  421 
Heckert  v.  Fegely,  405 
Heckman  v.  Messenger,  211 
Hecksher,  Pottinger  v.  99 
Hedden,  Leaycraj't  v.  486 
Heffelfinger  v.  Shutz,  155 
HefFerman,  Manri  v.  189 

Rodriguez  v.  399,  502 
V.  Adams,  503 
Heffner  v.  Wenrich,  155 
Heibbrenner,  Reist  v.  125 
Ileidenheimer  v.  Lyon,  202 
lleilbron  v.  Bissel,'208 
Ileleman  v.  Jleleraan,  354 


Helme  v.  Sanders,  125 
Helvete  v.  Rapp,  173 
Hemingway,  Remheimer  v.  52,  399 
Hemmenway  v.  Fisher,  179 
Hemphill  v.  Bank,  501 

V.  McClimans,  139 
Hempstead,  Rogers  v.  394 

V.  Reed,  240 
Hemstreet  v.  Howland,  404 
Henderson,  Effinger  v.  207 
Hale  V.  162 
McGlorin  v.  134 
Montgomery  v.  373 
Shippy  V.  139 
Skinner  v.  159 
The  Church  v.  162 
V.  Lauck,  94 
V.  Moore,  202 
V.  Talbert,  390 
Hendrick  v.  Glover,  56 
Hendrickson's  Appeal,  63 
Hendricks,  Pitts  v.  72 
Henessy  v.  Bank,  210 
Ilenning  v.  Workheiser,  155 
Henrie,  Hale  v.  385 
Henry,  Hill  v.  140 

McGaughey  v.  348 
Powell  V.  502 
Thornton  v.  143 
V.  McCloskey,  362 
V.  Milham,  518 
Henshaw  v.  Bobbins,  508 
Hensley  v.  Baker,  509 
Ilepborn,  Cooper  v.  354 
Heran,  Bradstreet  v. '119 
Herbert  v.  Dumont,  193 
Herdman  v.  Bratten,  155 
Herchew  v.  Hamilton,  164 
Hereford,  Marcune  v.  56 
Herman,  Hoke  v.  445 
Hermance  v.  Vernoy,  510 
Hermosilla,  Nash  v.  133 
Herndon,  McMorris  v.  138 
Herran,  Merriweatber  v.  55 
Herrick,  Davis  v.  375 
Fisk  V.  398 
Hogeboom  v,  194 
V.  Bank,  194 
V.  Borst,  193 
V.  Whitney,  510 
Herring,  Clark  v.  140 

V.  Hoppock,  94 
V.  Sanger,  203 
Ilerter,  La  Farge  v.  190 
Ileslef  V.  Sacramento,  138 
Heslip,  Rabe  v.  173 
Hess,  Braman  v.  16] 
Hench  v.  Mentzer,  126 
Heneh,  Gilbert  v.  1S9        , 
Heugh  V.  Jones,  487 
Hewes  V.  Doddridge,  502 
Hewit,  Nichols  v.  172 
Hewitt,  McDowell  v.  94 

V.  Buck,  117 
Ilewlet  V.  Flint,  66 
Heyer,  Mottram  v.  98 
Heywarci,  Cruger  v.  335 
Heywood,  Shell  v.  89 


XXXVlll 


INDEX    TO   AMERICAN    CASES   CITED. 


Ileywood,  AVhitnej'  v.  105 
Hilihs  V.  Kue,  I',)2 
Hihbard,  AVheaton  v.  145 
Ilibbert  v.  Carter,  109 
Hickerson  v.  Benson,  106 
Ilickinfjbottom,  Long  v.  510 
nick.s,  Downey  v.  20-1 
Long  V.  511 
McKee  V.  158 
V.  Brown,  If.O,  242 
V.  Burhans,  138 
V.  Cochran,  485 
V.  Hotohkiss,  241 
Hiester,  Mohn  v.  178 
Higgins  V.  Breen,  125 
Higginson,  Cretmer  t.  206 

V.  Gray,  160 
High  V.  Worley,  362 
Hight,  Weston  v.  421 
Hildreth,  Harwood  v.  172 

T.  Heath,  310 
Jliler,  Apgar  v.  189 

Biidd  V.  72 
Hill,  Alcock  V.  192 

Bank  v.  192,  207 
Brady  v.  208 
Brewster  v.  60,  333 
Davis  V.  94 
Freeman  v.  37S 
Gilinan  v.  93 
Kinley  v.  190 
Toombs  V.  401 
Watkias  v.  204 
V.  Beach,  397 
T.  Bowman,  346 
V.  Campbell.  189 
V.  Cooley,  155,  156 
T.  Henry,  140 
T.  Holraes,  56,  497 
V.  Penny,  125 
V.  Sutherland,  208 
V.  Wentworth,  60 
Hillegas,  United  States  v.  193 
Hillhouse,  Breed  r.  140 
Hilliard,  Frazier  v.  94 

V.  Greenleaf,  243 
Hills  V.  Barnes,  155 
Hillyer  v.  Vanghan,  206 
Hillman  v.  Wilcox,  607 
Hilton  V.  Burley,  207 

Wise  V.  204 
Hiltshue,  Gurley  v.  202 
Hilyard's  Estate,  276 
Hines,  Filson  v.  159 
Hind  V.  Longwortby,  374 
Hinds  V.  Chamberlin,  159 

Wall  V.  67 
Hines  v.  Mullins,  357 
Hinckley  v.  Mare^u,  242 
Hinkley,  Storer  v.  407 
Hininan,  Chace  v.  189 
Hitch  V.  Davis,  421 
Hitchcock,  Boyd  v.  202 
Co  veil  V.  98 
Hitchins,  Warner  v.  255 
Hix,  Bevil  v.  166 
Scott  V.  510 
Hoag  V.  McGinnis,  133 


ITong,  Wagman  v.  193 
Ilobensack,  Sheetz  v.  200 
Hoch,  Watt  v.  207 
Hocker  v.  Gentry,  354,  362 
Hodge  V.  Combs,  501 
Hodges,  Duncan  v.  157 

V.  Armstrong,  190 
V.  Dawes,  403 
V.  Hollman,  403 
V.  King,  134 
Hodgman  v.  Smith,  404 
Hodgdon  v.  Hodgdon,  178 

V.  White,  516 
Hodnett  v.  Tatum,  504     • 
Hodson  V.  McConnell,  200 
Hoe  V.  Sanborn,  608 
Hoey,  Howard  v.  509 
Hoff's  Ai)peal,  445 
Hoffman,  Bayard  v.  378 
Cox  V.  504 
V.  Carow,  498 
V.  Dunlop,  392 
V.  Foster,  498 
V.  Smith,  153 
Hogan,  Bell  v.  336 
Hoge,  Bank  v.  192 
Hogeboom  v.  Herrick,  194 

Wendover  v.  114 
Hogins  V.  Plympton,  507 
Hogshead  v.  Caruth,  200 
Hoke  V.  Herman,  445 
Holbrook,  Elliott  v.  392 
Holcombe,  Bishop  v.  519 

Story  v.  330 
Holden,  Allen  v.  55 

Williams  v.  441 
V.  Bull,  172 
v.  Dakin,  507 
Holdship,  Gray  v.  67 
Holland,  Desha  v.  395 
Field  V.  205 
Moore  v.  90 
V.  Craft,  362 
V.  Dale,  519 
V.  Fuller,  383 
V.  Hatch,  157 
V.  Moody,  475 
Hollingshead  v.  McKenzie,  143 
Hollingsworth  v.  Bates,  93 

V.  Floyd,  191 
Holliday,  Stockett  v.  374 
Hollman,  Hodges  v.  403 
Holloway,  Byrd  v.  441 

Keenan  v.  138 
Roundtree  v.  138 
Holly,  Barton  v.  485 

Cromwell  v.  194 
Fairchild  v.  206 
v.  Adams,  421 
Holman  v.  Perry,  485 

V.  Whiting,  153 
Holman's  Appeal,  335 
Holmes,  Castleman  v.  205 
Hallett  v.  192 
Hill  V.  56,  497 
McGinn  v.  203 
McGuirn  v.  202 
Shinn  v.  432 


INDEX   TO   AMERICAN    CASES   CITED. 


XXXIX 


Holmes  v.  Decamp,  203 
V.  Paul,  153 
V.  Tremper,  67,  69 
Holridge,  Groodale  v.  162 
Holt,  Graham  v.  157 
V.  Body,  191 
V.  Kernodle,  404 
Homer,  Shelton  v.  162 
Homes  v.  Smith,  204 
Hommell  v.  Gamewell,  189 
Hood,  Grier  v.  408 

V.  Railroad  Co.,  121 
Hooe  V.  Tebbs,  160 
Hook,  Grant  v.  365 
V.  Gray,  159 
V.  Ross,  123 
Hooker,  Pierson  v.  381 
Hooks,  Howell  v.  445 
Hooper,  Beer  v.  241 

Foster  v.  390 
Hoopes  V.  Dundas,  470 
Hoover  v.  Hoover,  180 

V.  Samaritan  Society,  485 
V.  Tibbiis,  99 
Hopbaugh,  Chippenger  v.  162 
Hope  V.  Johnston,  393 
Hopkins,  Clark  v.  171 

Medbury  v.  240 
Sherill  v.  161 
Vanada  v.  504 
White  V.  153 
V.  Blanc,  503 
V.  Conrad,  208 
V.  Forsyth,  380 
V.  Jones,  354 
V.  Liswell,  140 
Hopkirk  v.  Randolph,  374 
Hopping,  Hammond  v.  161 
Hoppock,  Grover  v.  194 
Herring  v.  94 
Hornbeck,  Vanauken  v.  155 
Home  V.  Lyeth,  334 
Horner,  Knowlton  v.  262 
Horry  District  v.  Harrison,  157 
Horsey  v.  Heath,  383 
Horstman  v.  Gerker,  55 
Horton,  McLaughlin  v.  510 

V.  Stanley,  262 
Hortons  v.  Townes,  502 
Horwitz  V.  Norris,  348 
Hosack,  Rogers  v.  393 

V.  Weaver,  498 
Hosmer  v.  True.  132 
Hostler,  Burgwin  v.  383 
Hotch  v.  Taylor,  502 
Hotchkiss,  Downey  v.  143 
Hicks  V.  241 
V.  Gage,  507 
V.  Greenwood,  318 
V.  Thomas,  285 
Hotz's  Estate,  470 
Houdlette  v.  Tallman,  93 
Houghtaling,  Williams  v.  207 
Houghton,  Ilapgood  v.  141 
Strader  v.  193 
v.  Maynard,  242 
Hour  V.  Clate,  203 
House,  Drennen  v.  406 


House,  Leonard  v.  268 
Walker  v.  383 
V.  Fiet,  507 
V.  House,  69 
Houseal's  Appeal,  211 
Houser  v.  Association,  303 
Houston,  Lewis  v.  126 
Sadler  v.  487 
Houts  V.  Showalter,  72 
Hovey,  Banorgee  v.  502 
How,  Cutler  v.  133 
Wilbur  V.  162 
Howard,  Ames  v.  317 
Currier  v.  57 
Dawes  v.  357 
Hauff  V.  384 
King  V.  160 
Waters  v.  448 
Wooten  V.  58 
V.  Blackford,  160 
V.  Brown,  193 
V.  Hoey,  509 
V.  Priest,  384 
V.  Welchman,  153 
Howe,  Clarke  v.  283 

Gammon  v.  133 
Lee  V.  123 

V.  Commissioners,  122 
Howell,  Field  v.  333 

Pritchard  v.  140 
United  States  v.  192 
y.  Hooks,  445 
V.  Johnson,  427 
V.  Sehenck,   72 
V.  The  People,  204 
Hower,  Miller  v.  144 

V.  Geeseamen,  210 
Howes,  Wolfe  v.  339 
Rowland,  Hemstreet  v.  404 
Hoxie  V.  Carr,  384,  399 
Hoy,  Stevenson  V.  501 
Hoyle,  Rankin  v.  348 
V.  Smith,  486 
Hoytv.  Ins.  Co.,  252 

v.  Shelden.  242 
Hozier,  Peck  v.  242 
Hubbard,  Boynton  v.  162 
Bridge  v.  161 
Brooks  v.  134 
Curtis  V.  204 
Upton  V.  242 
V.  Davis,  193 
V.  Guild,  384 
Hubbell,  Preseott  v.  203 

V.  Carpenter,   195 
y.  Coudry,  180 
Hubbs,  Livingston  v.  371 
Hubby  V.  Hubby.  106 
Huber,  Sherick  v.  52,  126 

y.  Zimmerman,  502 
Hubler  y.  Waterman,  211 
Hubley  v.  Long,  334 
Huck,  United  States  v.  399 
Huckabee  v.  Swoope,  427 
lluckleman  v.  Miller,  143 
nu<lgins  y.  Perry,  509 
Hudnall,  Harcum  v.  362 
Hudson,  Ja(iuith  v.  133 


xl 


INDEX   TO   AMERICAN   CASES   CITED. 


Hudson,  Peniman  v.  IW 
Perry  v.  504 
V.  Reel,  156 
V.  Reere,  284,  426 
Hudsons  V.  Iludsons,  347 
Huey's  Appeal,  376 
Hiiffv.  Richardson,  1-10 
Huffman  v.  Hurlburt,  192 
Huffnagle,  Bolin  v.  lOO 
Hughart,  Bason  v.  ISO 
Hughes,  Bank  v.  138 
Banks  v.  510 
Coates  V.  432 
Galloway  v.  407 
Ivichols  V.  407 
Railroad  Co.  v.  93 
Verree  v.  178 
V.  Boring,  397 
V.  Boyd,  470 
T.  Wheeler,  161,  204 
Hugas  V.  Robinson,  93 
Huison  T.  Pickett,  371 
Huling,  Coder  v.  384 
Hull,  Scott  V.  192 
Humphreys,  Glenn  v.  240 

The  People  t.  490 
T.  Comline,  507 
V.  Giiillou,  155 
\\  Rawn,  172 
T.  Wheeler,  204 
Humphries,  Pearce  t.  52 

V.  Humphries,  7S 
Hunneman,  Andrews  v.  426 
Hunsecker,  Waynes  v.  93 

Bradley  v.  422 
Hunt,  Bedford  v.  316 
Burditt  V.  105 
Chambers  v.  380 
Coachman  v.  57 
Graham  v.  139 
Roundy  v.  172 
United  States  r.  193 
V.  Adams,  155 
V.  Amidon,  189 
V.  Bank,  365 
T.  Benson,  384 
V.  Bridgham,  193 
T.  Knickerbocker,  162 
T.  Knox,  193 
V.  Robinson,  162 
T.  Rousemanier,  198 
V.  Smith,  371 
T.  Turner,  159 
Hunter,   Allen  v.  317 

Gilpatrick  t.  3^3 
V.  Hutchinson,  93 
T.  Jett,    192 
T.  Martin,  384 
V.  Stembredge,  345 
V.  Warner,  94 
Huntington,  Imlay  v.  485 
Morris  v.  316 
V.  Finch,  155 
V.  Gilinore,  421 
Huntington  v.  Wilder,  501 
Huntley,  Hale  v.  90,  93 
Hurd,  Bowers  V.  421 
Hurlburt,  Ericson  y.  3oS 


Hurlburt,  Huffman  v.  192 

Hurlt  V.  Fisher,  362 

Hurts,  Goad  v.  501 

Husbands,  Cooke  v.  486 

Huse,  Cilley  v.  384 

V.  Alexander,  205 

Iluskill  V.  Johnson,  399 

Hussey,  v.  Bank,  205 

Hust,  Gardener  v.  203 

Huston  V.  Cantrell,  375 

Hutcher  v.  Robertson,  373 

Hutcheson,  Deloney  v.  384 

Hutchins  v.  Olcott,  204 

Hutchinson,  Ayer  v.  162 

Crostwaight  v.  375 

V.  Bank,  500 

T.  Hunter,  93 

V.  Hutchinson,  144 

V.  McClure,  172,  210 

V.  Moody,  192 

Huth,  Bank  v.  378 

Hutsen  v.  Overturf,  138 

Hutton  V.  Hutton,  375 

Hyatt  V.  Boyle,  607 

Hyde,  Fisher  v.  242 
V.  Cookson,  87 

Hyar,  Jarvis  v.  383,  398 

Hyland,  Frazier  v.  207 

V.  Sherman,  509 

Hyserott,  Nixon  v.  503 

I. 

Iddings  V.  Nagle,  72 

Ijams  T.  Rice,  178 

Ihmsen  v.  Negley,  407 

Ihmsens's  App.,  370 

Ilsley  V.  Jewett,  203 

V.  Merriam,  242 

V.  Stubbs,  52,  99  « 

Imlay  v.  Huntington,  485 

In  re  Walton,  211 

Inbusch  V.  Farwell,  408 

Inge  V.  Bank,  192 

Ingleby,  Watkinson  v.  202 

Ingledew,  Griffith  v.  80,  119 

Inglehart,  Evans  v.  73 

Inglish  V.  Brenneman,  154 

Ingraham,  Thrasher  v.  426 
V.  Meade,  347 

Ingram,  Parks  v.  153 

Thrasher  v.  285 
V.  Drinkhard,  179 
V.  Smith,  334 
V.  Terry,  426 

Insurance  Company,  Allegre  v.  263 
Bevin  v.  252 
Brander  v.  503 
Cunard  v.  259 
Duffy  V.  375 
Flanagan  v.  56 
Hoyt  V.  252 
Jennings  v.  257 
Loomis  V.  253 
McKee  V.  253    . 
Morrell  v.  252 
Muller  V.  252 
Perkins  v.  502 


INDEX   TO   AMERICAN   CASES   CITED. 


Xli 


Insurance  Company,  Phillips  v.  334 
Pollard  V.  56 
Rearle  v.  258 
Richardson  v.  162 
Ruse  T.  252 
St.  John  V.  253 
Tate  V.  503 
White  V.  383,  397 
V.  Austin.  365 
v.  Bay,  487 
V.  Insurance  Co.,  162 
V.  Johnson,  166,  253 
V.  Leven worth,  198 
V.  Noyes,  472 
T.  Piatt,  204 
V.  Robertshaw,  252 
V.  Stark,  503 
V.  AVeeks,  200 
Iron  Company,  Bates  v.  504 

V.  Cleason,  200 
V.  Hale,  503 
y.  Rutherford,  57 
Irons  V.  Reyburn,  504 
Irvine  v.  Stone,  159 
Irwin,  Barnes  v.  485 

MeCormick  v.  191 
Seiple  V.  503 
T.  Hazleton,  179 
T.  Kean,  211 
V.  Sterling,  126 
Irwin's  Ap ,  442 
Irwine,  McFarland  v.  172 
Isler  V.  Brunson,  160 
Isley  V.  Stewart,  506 
Israel,  Brittain  v.  508 
Ives,  Bank  v.  192 

Canfield  v.  202 
Webber  v.  263 
V.  Bank,  157 
V.  Davenport,  503 
Izard  V.  Izard,  374 


Jack  V.  Morrison,  189 
Jacks  V.  Nichols,  161 
Jackman,  Dorsey  v.  510 
Jackson,  Aldrich  v.  510 
Brown  v.  202 
Ellison,  V.  138 
Hayes  V.  180 
Jones  V.  161 
McCheury  v.  200 
Pierce  v.  398 
Skilling  V.  372 
Tiernan  v.  519 
V.  Bailey,  205 
V.  Blanshaw,  334 
V.  Chase.  157 
V.  Cornell,  397 
v.  Edwards,  485 
V.  Gould,  157 
V.  Jackson,  345 
V.  Lloyd,  179 
If.  Malin,  155 
V.  Nichols,  162 
V.  Osborn,  155 
V.  Richards,  144 


Jackson   v.  Subett,  354 

T.  Wetherill,  507 
V.  Willard,  200 
Jacobs,  Farwell  v.  58 
Jacques,  Jollin  v.  319,  330 

V.  Gould,  255 
James,  Bank  v.  192 
Biddis  v.  162 
Conger  v.  263 
Gray  v.  31  7 
Hawley  v.  362 
Jordan  v.  98,  102 
Sallade  r.  72 
Thurston  v.  394 
V.  Allen,  242 
V.  Hackley,  202 
V.  Jarrett,  173 
V.  McCredie,  504 
Jamison  v.  Ludlow,  140 
Jansen,  The  People  v.  194 
Jaques,  Trustees  v.  485 
V.  Todd,  501 
T.  Trustees,  486 
Jaquith  v.  Hudson,  133 
Jarnagin  v.  Conway,  346 
Jarrett,  James  v.  173 
Jarvis,  Allen  v.  143 

V.  Brooks,  384,  397 
T.  Hyer,  383,  398 
V.  Roger,  126 
JeflFers  v.  Johnson,  189 
Jeffress,  Miller  v.  421 
Jeffrey  v.  Cornish,  203 
Jeffries,  Johnson  v.  105 

Poindexter  v.  374,  477 
Steelwagon  v.  93 
Jellison  v.  Lafonta,  380 
Jenks,  Thomas  v.  210 
Jenkins,  Boorman  v.  509 
Clarke  v.  441 
Coffin  V.  404 
Dillingham  v.  333 
Nixon  v.  138 
v.  Brewster,  519 
V.  Clark,  193 
V.  Eichelberger,  87 
V.  Eldredge,  371 
Jenney  v.  Jenney,  125 
Jennings  v.  Gratz,  609 

V.  Insurance  Company,  257 
Jenny,  Taber  v.  263 
Jerome,  Lyon  v.  503 
Jett,  Backhouse  v.  378 
Hunter  v.  192 
Wilkinson  v.  404 
Jeune,  Newman  v.  53 
Jewell,  Bowers  y.  154 
Jewett,  Ilsley  v.  203 

V.  Preston,  106 
v.  Weaver,  125 
Johns  V.  Bolton,  211 
Johnson,  Cammack  v.  399 
Chesturn  v.  203 
City  V.  123 
De  Wolf  V.  160 
Goddard  v.  354 
Heart  v.  189 
lluskill  v.  399 


xlii 


INDEX    TO   AMERICAN    CASES   CITED. 


Johnson,  Insurance  Company  v.  1G6,  253 

Jeffers  v.  189 

Manning  v.  472 

Nichols  V.  155 

Phelps  V.  203 

Reed  V.  398 

Reynolds  v.  140 

Scudder  v.  262 

State  V.  ISO 

The  Steamboat  John  Owen  v.  121, 

Ward  V.  204,  389,  392 

Worthy  V.  498,  510 

V.  Bank,  155,  426 

V.  Brannan,  201 

V.  Chapman,  189 

V.  Glancy,  143 

V.  JefTries,  105 

V.  Johnson,  138,  161,  189,  203 

V.  Jones,  501 

V.  Mehaffey,  66 
V.  Searcy,  193 
V.  Valentine,  353 
V.  Weed,  202 
Johnson's  Appeal,  206 
Johnsons,  Mitchells  v.  345 
Johnston,  Fulford  v.  202 

Hope  V.  393 

Howell  V.  427 

Maywood  v.  486 

V.  Cope,  608 

V.  Johnston,  375 
JoIIin  V.  Jacques,  319,  330 
Jonas  V.  Bank,  394  • 

Jones,  Andrews  v.  373,  486 
Bank  v.  501 
Bartlett  v.  404 
Bogard  V.  53 
Diffendorffer  v.  72 
Dodworth  v.  52 
Evans  V.  63 
Goodrich  v.  71 
Harwood  v.  384 
Heugh  V.  487 
Hopkins  v.  354 
Johnson  v.  501 
Lewis  V.  67,  71 
Livingston  v.  318 
Malis  V.  180 
Markham  v.  406 
Motly  V.  404 


380 


Ombony  v.  67 
Pritchett  v.  8( 
Rawson  v.  56 
Richardson  v. 
Robson  V.  374 
Sellers  v.  204 
Sherburne  v.  72 
Small  V.  204 
Taylor  v.  206 
Van  Vleet  v.  205 
Wraynian  v.  370 
T.  Brown,  422 
T.  Bulcock,  194 
V.  Bullett.  202 
V.  Bullock,  192 
v.  Caswell,  162 
V.  Deyer,  421 
V.  Farley,  502 


Jones   V.  Jackson,  161 
V.  Kennedy,  204 
V.  Kilgore,"  206 
V.  Littlefiekl,  126 
V.  McMichael,  405 
V.  Moore,  140 
V.  Morehead,  318 
V.  Murray,  509 
V.  Neagle,  408 
V.  Palmer,  144 
V.  Perkins,  202 
V.  Shawhan,  205 
V.  Shorter,  138 
V.  Stockett,  357,  370 
V.  Thomas,  72 
V.  Turcher,  191 
V.  United  States,  206 
V.  AVard,  207 
V.  Warner,  504 
V.  AVhitter,  519 
V.  AVillett,  56 
V.  Witter,  57 
Jonson  V.  Titus,  510 
Jordan,  Drinkwater  v.  393 
Evans  V.  318 
Rundlett  V.  200 
White  V.  202 
V.  Harris,  93 
V.  James,  98,  102 
V.  Lewis,  133 
,   V.  Stewart,  156 
V.  Thornton,  426 
V.  Trumbo,  193 
Joslin,  Sawyer  v.  98 
Joslyn  V.  Smith,  192 
Jonett,  Mason  v.  394 
Joy  V.  Wurtz,  393 
Joyce  V.  Adams,  93 
Judah,  Murrah  v.  153 
Judd  V.  Fox,  52 

V.  Porter,  241 
Judge  V.  Alexander,  426 
Judges  V.  The  People,  172 
Judson,  Ehle  v.  138 
Lake  v.  432 
Wright  V.  192 
V.  Adams,  404 
Jung,  Pierce  v.  134 
Justice,  Barrington  v.  71 

K. 

Kaighn,  Paulin  v.  196 
Kane  v.  Golt,  362 
Karmany,  Ely  v.  172 
Kase,  Work  v.  153 
Kater  v.  Steinruck,  125 
Kauffman  v.  Fisher,  394,  408 
Kavanagh  v.  Saunders,  160 
Keadle,  Youngblood  v.  105 
Kean,  Irwin  v.  211 

Stanley  v.  433 
Keans  v.  Rankin,  262 
Keating  v.  Reynolds,  334 
Keefer,  Kepner  v.  162 
Keeler,  Boardman  v.  395,  404 

Ruggles  V.  160 

V.  Neal,  203 


INDEX    TO   AMERICAN   CASES   CITED. 


xliii 


Keeler,  Wilder  v.  383,  397 
Keen,  Ford  v.  262 

V.  Vaughan,  203 
Keene  v.  Wheatley,  323 
Keenan,  Clark  v.  125 

V.  Holloway,  138 
Keener  v.  Harrod,  600 
Keim's  Appeal,  210 
Keith,  Andrews  v.  398 
Ford  V.  189 
Reinhard  v.  200 
V.  Woombwell,  373 
Keito  V.  Boyd,  125 
Keler,  Secor  v.  395 
Kelley  v.  Lindsey,  504 
Kellogg,  Ensign  v.  55 
V.  Curtis,  133 
V.  Dumont,  202 
V.  Griswold,  404 
V.  Larkin,  164 
Kelly,  Davidson  v.  408 
V.  Kelly,  426 
V.  Page,  196 
V.  Smith,  602      • 
Kelsey,  Coles  v.  140 

Thomas  v.  207 
V.  Durkee,  66 
V.  Murphy,  179 
Kelso  V.  Dickey,  354 
Kemp,  Green  v.  190 

V.  Carnley,  408 
Kempton,  Bates  v.  423 
Kendall,  Donaldson  v.  408 
Struthers  v.  153 
V.  Badger,  241 
V.  Stokes,  263 
V.  Winsor,  318 
Kendrick,  Page  v.  374 
Kenley  v.  Kenley,  376 
Kennedy,  Bowman  v.  120 
Jones  V.  204 
Mclntyre  v.  204 
Singleton  v.  609 
V.  McAfiel,  125 
Kennedy's  Appeal,  516 
Kennerly  v.  Wilson,  125 
Kennett  v.  Chambers,  162 
Kent,  Campbell  v.  172 
Kepner  v.  Keefer,  162 
Kernochan,  Dyckman  v.  371 
Kernodle,  Holt  v.  404 
Kerns  v.  Piper,  504 
Kerr  v.  Day,  55 

V.  Potter,  406 
Kershaw,  Perkins  v.  190 
Ketchum,  Robertson  v-  501 
Thompson  v.  160 
Keteridge,  McComb  v.  192 
Kevan,  Ilearne,  v.  426 
Kichline,  Rogers  v.  395 
Kidd,  Brown  v.  194 
Kidder,  Lawrence  v.  164 
Kiehl,  Hearn  v.  203 
Kilbourne,  Clagett  v.  385 
Martin  v.  179 
Kileian,  Simnis  v.  144 
Kilgore,  Jones  v.  205 
Kimball,  Allen  v.  206 


Kimball,  Lee  v.  99 

Young  V.  83,  126 
V.  Wilson,  381 
Kimmel  v.  Lechty,  507 
Kimmey,  Fawcetts  v.  191 
Kincaid,  Burson  v.  392 

V.  Neall,  200 
Kinder  v.  Shaw,  602 
Kfcdrick,  Bank  v.  207 
King,  Barringer  v.  179 
Carpenter  v.  194 
Dickinson  v.  204 
Hodges  V.  134 
Lane  v.  72 
Parnell  v.  262 
Truseott  V.  172 
Westcott  V.  189 
V.  Baldwin,  190 
V.  Fowler,  72 
V.  Howard,  160 
V.  King,  354 
V.  Riddle,  242 
v.'Shaw,  172 

V.  Wilcomb,  68  • 

Kingsberry,  Evans  v.  362 
feingsbury  v.  Lane,  125 

V.  Taylor.  507 
Kingsland,  McClurg  v.  314,  318 
Kingston  v.  Wharton,  139 
Kinkhead,  Caldwell  v.  448 
Kinley  v.  Fitzpatrick,  507 

V.  Hill,  190 
Kinnard  v.  Daniel,  374 
Kinney,  Watts  v.  190 
Kinniken  v.  Dulaney,  57 
Kinsman  v.  Parkhursl,  164 
Kinster  v.  Pope,  202 
Kintner  V.  State,  178 
Kirby,  Gallis  v.  200 

Headley  v.  421 
Wayne  v.  192 
V.  Clark,  125 
V.  Studebaker.  193 
V.  Taylor,  392 
Kirk,  Buddicum  v.  202 
Frey  v.  242 
V.  Richbourg,  179 
Kirkbride  v.  Durden,  173 
Kirkpatrick,  Philip  v.  161 

United  States  v.  194,  206 
Watkins  v.  161 
Kirkwood,  Hamer  v.  178 
Kitchen  v.  Spear,  99 
Kiterell,  Liscomb  v.  503 
Kittera's  Estate,  180,  516 
Kitteridge  v.  Rhodes,  67 

V.  Wood,  71,  72 
Kittredge  v.  Brown,  139 
Smith  v.  421 
Kligensraith,  Bank  v.  194 
Kline,  Bridge  Company  v.  159 
Fairly  v.  362 
Fanty  v.  353 
V.  (hithart,  125 
Klock  V.  Robinson,  178 
Kiopp  V.  Wittnoyer,  504 
Knapp,  Brewer  v.  206 
Everitt  v.  172 


xliv 


INDEX    TO   AMERICAN    CASES   CITED. 


Knapp  V.  Mnltby,  134 

V.  Winohester,  78 
Kneeland,  Andrews  v.  501 

Rogers  V.  159 
Knickerbocker,  Hunt  v.  162 
Knight,  Pierce  v.  200 

V.  Yarborough,  347 
Knott,  Shaddon  v.  53 
Knowles,  Shaw  v.  383 

V.  iMcCaiuly,  487 
Knowlton  v.  Horner,  262 
Knox,  Abercroinbie  v.  189 

Church  V.  398 

Hunt  V.  193 

V.  Moatz,  190 

T.  Schepler,  383,  398 

V.  Summers,  398 
Koch  V.  Melhorn,  189 
Kohans,  Kunzler  v.  219 
Koneman,  Barker  v.  374 
Kounts,  Abrams  v.  132 
Kramer  v.  Arthurs,  385 
Kreider,  Greenawalt  v.  193 
Kuhn,  Giil  v.  406 
Kuns  V.  Young,  ]44 
Kuntz,  Harbold  v.  140 
Kunzler  v.  Kohans,  219 


La  Farge  r.  Herter,  190 
Labeaume,  Newman  v.  263 
Lacon,  Diivenport  r.  200 
Lacy  V.  Hall,  384 
Ladd  r.  Ladd,  485 

Whitney  v.  398 
V.  Wiggin,  440 
Ladson  v:  AVard.  448 
L'Amoreaux  v.  Van  Renssalaer,  487 
Lafarge,  Harrod  v.  152 
Laflin  v.  Griffiths,  66 
Lafonta,  Jellison  v.  380 
Lagow  V.  Patterson,  501 
Lain,  Wells  t.  262 
Lake,  Judson  v.  432 
Lalande  v.  Breaux,  161 
Lamar,  Raid  v.  486 
Lamb,  Belden  v.  161 

Mauran  v.  56,  497 
V.  Crafts,  507 
V.  Goodwin,  202 
V.  Lamb,  354 
T.  Lynd, 123 
Lambert,  Burnley  v.  427 

Hammersley  v.  383 
Larrabee  v.  160 
V.  Sandford,  153 
Lamme  r.  Gregg,  507 
Lamothe  v.  Railway  and  Dock  Co.  501. 
Lampton,  Montgomery  v.  139 
Lanata  v.  O'Brien,  509 
Lancaster  v.  l)olan,  486 
Lance  v.  Barrett,  501 
Land  Company,  Gilmore  v.  399 
Landon,  Bulkley  v.  1.38 
Lane,  Everitt  v.  426,  445 
Harrison  t.  193 


Lane,  Kingsbury  v.  125 
McArthur  v.  380 
Robinson  v.  441 
V.  King,  72 
V.  Robinson,  98 
Lang,  Brown  v.  190 

Warning  v.  383 
V.  Waring,  384 
Langdon  v.  Degroot,  318 
Langley,  Mureau  v.  166 
Lanier,  Arnold  v.  125 

V.  Auld,  510 
Lansford,  Reynolds  r.  374 
Lapham,  Mc-Daniels  v.  202 
Lapice  v.  Clifton,  497 
Lardner,  Murray  v.  56,  498 
Large  r.  Passmore,  161,  262 
Lark  v.  Linstead,  284,  426 
Larkin,  Kellog  v.  164 

V.  McMulIin,  374 
Larkins,  Devane  v.  353 
Larue,  Gilkyson  v.  140 
Lamed,  Frisbie  v.  202 

Woodbury  v.  503 
Larrabee  v.  Lambert,  160 

V.  Talbot,  241 
Lasater,  Hays  v.  380 
Lasley  v.  Blakeman,  347 
Lassell  v.  Reed.  67,  71 
Latapee  v.  Pecholier,  201 
Lathrop,  Bush  v.  55 

V.  Morris,  153 
Lathrop's  Appeal,  190 
Lattimore  v.  Simmons,  126 
Lauck,  Henderson  y.  94 
Laugham,  Moore  v.  510 
Laughlin  v.  Ferguson,  189 

r.  Lorentz,  .384 
Laughton  v.  Atkins,  432 
Laurence,  McDermot  v.  386 
AVeaver  v.  52,  126 
Laurons,  Sealy  v.  354 
Laussatt  v.  Lippincott,  502 
Law,  Hall  v.  173 
V.  Cross,  504 
V.  Mills,  210 
Lawless  v.  Hackett,  172 
Lawrence,  BrinkerhofF  v.  425 
Hawes  v.  507 

Manufacturing  Company  v.  506 
AVenver  v.  126 
V.  Kidder,  164 
V.  Sturdivent,  200 
Lawridge,  Gr.ay  v.  139 
Laws,  Lucas  v.  398 
Lay,  Charlton  v.  510 
Le  Baron,  Benjamin  v.  125 

Chighigola  v.  353 
Le  Febre,  Carr  v.  56 
Le  Page  v.  McCrea,  202 
Le  Roy,  Grandin  v.  153 

Pope,  Braham  v.  134 
V.  Tatham,  316 
Lea,  SIoo  v.  204 

T.  Guice,  395 
Lea's  Appeal,  210 
Leadenham  v.  Nicholson,  362 
Leary  v.  Cheshire,  196 


INDEX   TO   AMERICAN    CASES   CITED. 


xlv 


Leavitt,  Lyon  v.  190 

V.  Savage,  192 
Leaycraft  v.  Heddon,  486 
Lebanon,  Sandford  v.  490 
Leblen  v.  Rutherford,  207 
Lecky,  McClurg  v.  211 

V.  McDermott,  498 
Leclere,  Denis  v.  330 
Ledford  v.  Ferrell,  144 
Ledyard,  Acker  v.  155 
Lee,  Bruce  v.  162 
Carroll  v.  373 
Dickinson  v.  348 
V.  Gould,  63 
V.  Howe,  123 
V.  Kimball,  99 
V.  Luther,  421 
Leedom  v.  Phillips,  94 
Lefavour,  Upham  v.  206 
Legrand,  Merrill  v.  162 
Leguire,  McPherson  v.  127 
Lehigh  Co.  v.  Field,  87,  94 
Leiby's  Appeal,  357 
Leidy  v.  Taininany,  56 
Leigh  V.  Smith,  516,  485 
Leitch,  Muir  v.  397 
Leland,  Luke  v.  193 
Wood  V.  189 
V.  Douglass,  504 
Lelane  v.  Gasset,  67 
Leman,  Deterick  v.  201 
Lemar  v.  Mills,  70 
Lemotier  v.  Godfroid,  353 
Lenoir  v.  Syhester,  425 
Lenox  v.  Prout,  193 
Lentmyer,  Welty  v.  263 
Leonard  v.  House,  263 

V.  Winslow,  93,  94 
Wentworth  v.  105 
Wheelock  v.  242 
Winslow  V.  86 
Leowolf,  Stebbins  v.  279 
Leslie,  Craig  v.  362 

AVilson  V.  105 
Lester  v.  Graham,   508 
V.  McDowell,  94 
Letcher,  Commonwealth  v.  205 

V.  Bates,  154 
Levan,  Anderson  v.  204 

Groff  V.  72 
Levenworth,  Insurance  Company  v.  198 
Levering,  Rittenhouse  v.   190 

V.  Levering,   490 
Levick,  Venable  v.  408 
Levy,  Becker  v    151 

Hampton  v.  190 
Very  v.  503 
V.  Cadet,  195 
V.  Wallis,   106 
Lewin  v.  Delie,  501 
Lewis,  Bank  v.  194,  504 
Barrett  v.  208 
Chadsey  v.  57 
Commonwealth  v.  180 
Dyer  v.  507 
Jordan  v.  133 
Lowell  V.  316       • 
Osgood  V.  506 


Lewis,  Putnam  v.  203 
Southard  v.  383 
V.  Bacon,  207 
V.  Darling,  284 
\».  Hauchman,  153 
V.  Houston,  126 
V.  Jones,  67,  71 
V.  Norwood,  242 
V.  Payne,  156 
V    Smith,  172 
V.  Thompson,  448 
V.  Walker,  421 
V.  Yale,  123 
Licey  v.  Licey,  57 
Lichtenthaler  v.  Thompson,  191 
Liehty,  Kimmel  v.  507 
Lidenbender  v.  Charles,  152 
Life  Association,  Valton  v.  252 
Ligou  V.  Ford,  263 

Lightbody  v.  Insurance  Company,  501 
Lightburn  v  Cooper,  510 
Lightfoot,  Dearing  v.  605 

V.  Price,  207 
Lillard  v.  Reynolds,  426,  445 

V.  Robinson,  346 
Limehouse  v.  Gray,  608 
Linard  v.  Patterson,   202 
Lincoln,  Dale  v.  422 
Denny  v.  162 
Dole  V.  421 
Eaton  V.  202 
Merritt  v.  193 
Lindau  v.  Arnold,   200 
Lindsay,  Carsley  v.  262 
Dick  V.  87 
Harris  v.  202 
Lytle  V.  167 
V.  Annesley,  133 
V.  Davis,  508 
Lindsey,  Kelly  v.  504 

V.  Steven,  206 
Lines  v.  Smith,  510 
Linford  v.  Linford,  397 
Link,  Rainey  v.  140 
Linnig  v.  Peters,  364 
Linn,  United  States  v.  155 
Linney  v.  Dare,  383 
Linsley,  Gibbs  v.  501 
Linstead,  Lark  v.  284,  426 
Linton  v.  Hart,  339 

Yonghe  v.  190 
Lippencott,  Weeks  v.  159 
Lippincott,  Laussatt  v.  502 
V.  Ridgway,  347 
Lipscomb,  Sample  v.  442 
Lipsey,  Sharp  v.  262 
Liscomb  v.  Kiterell,  503 
Lisk,  Linn  v.  125 
Liswell,  Hopkins  v.  140 
Litchfield,  Daily  v.  133 
Little,  Collison  v.  381 
Shepley  v.  502 
V.  Bennett,  348 
V.  Gould,  331 
v.  Stillheimer,  504 
Littlefield,  Dudley  v.  386 
Jones  V.  126 
V.  Story,  f 18 


xlvi 


INDEX    TO   AMERICAN    CASES   CITED. 


Littlejohn,  Yancey  v.  192 
Litton  V.  Baldwin,  486 
LiveriDore  v.  Claridge,  207 
Livingston,  Denton  v.  200 
lleade  v.  .'574 
Rieiietts  V.  448 
Story  V.  207 
V.  Bell,  210 
V.  Hubbs,  371 
V.  Jones,  318 
V.  Livinrjston,  375 
V.  Newkirk,  180 
V.  Radclifi',  202 
V.  Rogers,  138 
V.  Roosevelt,  407 
Lloyd,  Jackson  v.  179 
Smith  V.  206 
V.  Wright,  96 
Lobdell  V.  Baker,  501 
Locke  V.  Postmaster,  193 

V.  U.  S.,  193  ^ 

Lockerman,  Chase  v.  445 
Lockett,  Garland  v.  138 
Lockhart,  Carpenter  v.  132 

Lucas  V.  345 
Lockwood,  Calkins  v.  55 
Lodge,  Pipber  v.  191 
V.  Phelps,  160 
Logan,  Sanders  v.  317 
V.  Austin,  162 
r.  Mason,  206 
V.  Watt,  432 
Logue  V.  Smith.  57 
Loines,  Schemerhorn  v.  118,  203 
Lombard,  Winsor  v.  507 
Long,  Hubley  v.  334 
Smith  v.  477 
Toris  V.  508 
Waller  v.   133 
V.  Hickingbottom,  510 
V.  Hicks,  511 
Longworth  v.  Conwell,  500 
Longworthy,  Hind  v.  374 
Lonsdale  v.  Brown,   138 
Loomis  v.  Ins.  Co.,  253 
V.  Marshall,  404 
Loomis's  App.,   180 
Lord,  Albin  v.  486 

Gadsden  v.  191 
School  District  v.  53 
V.  Baldwin,  395,  397 
V.  Grow,  509 
Lorentz,  Laughlin  v.  384 

v.  The  Mayor,  178 
Lorillard,  Baker  v.  348 
V.  Coster,  362 
Loring,  Cochran  v.  200 

V.  McClendy,  330 
Lothrop  V.  Wightman,  398 
Lett,  People  V.  182 

V.  Meaeham,  426 
Loucks,  Averill  v.  172,  204 
Loudon  v.  Bank,  56 
Loughborough  v.  Loughborough,  302 
Longhead,  Wycoff  v.  160 
Loundes  v.  Pinckney,  441 
Love  v.  Brown,  153 
V.  Palmer,  162 


Lovejoy,  French  v.  307 
Vaughn  v.  471 
v.  Bowers,  397 
v.  Murray,  394 
Lovell,  Bellows  v.  193 
Lovet,  Towle  v.  125 
Lovett,  Cornell  v.  471 

Cromwell  v.  204 
Low,  Blake  v.  425 

T.  Andrew.s,  90 
V.  De  Wolf,  119 
v.  Hallett,  263 
v.  Nolte,  262 
v.  Underhill,  193 
Lowden,  Grasselli  v.  133,  164 

v.  Moses,  241 
Lowe  V.  Cody,  477 
Lowell  V.  Lewis,  316 

Whitney  v.  105 
Lowry  v.  Brooks,  401 

V.  Mountjoy,  426 
V.  Tew,  55 
Lucas,  Sayre  v.  56 
V.  Laws,  398 
V.  Lockhart,  345 
V.  Atwood,  397 
Ludlam's  Estate,  445 
Ludlow,  Andrews  v.  200 
Grant  v.  56 
Jamison  v.  140 
Smith  V.  390,  487 
Winter  v.  371 
V.  Cooper,  384 
v.  Van  Rensselaer,  162 
Lugg  V.  Burgess,  160 
Luke  V.  Leland,  193 
Lukens,  Baker  v.  173 

Manderson  v.  353 
Lukins,  Coleman  v.  263 
Lull,  Dana  v.  125 
Lumbden  v.  Bourie,  200 
Lumbert,  Merrit  v.  126 
Lumpkin  v.  Mills,  190 
Lund,  Stubbs  v.  99 
Lundy,  Bolton  v.  193 
Lupton  V.  Cutler,  200 

V.  Lupton,  357 
Lusher  v.  Walton,  263 
Lusk,  Thomas  v.  398 

V.  Lusk,  490 
Luter,  Streeter  v.  140 
Luther,  Lee  v.  421 
Lyeth,  Home  v.  334 
Lyles  V.  Bass,  508 
Lyman,  Averill  v.  392 

Perkins  v.  133,  164 
United  States  v.  205 
Lynch,  Stoughton  v.  207 

V.  Thomas,  426 
Lynd,  Lamb  v.  123 
Lynden  v.  Gorham,  398 
Lyne  v.  Crouse,  4S0 
Lynn,  Hays  v.  503 
v.  Lisk,  125 
V.  Lynn,  141 
Lyon,  Denny  v.  191 

Heidenheimer  V.  202 
V.  Jerome,  503 


INDEX   TO   AMERICAN   CASES    CITED. 


xlvii 


Lyon  V.  Leavitt,  190 

V.  Vick,  427 
Lyons,  Moore  v.  353 
Lytle,  Russel  v.  203 
v.  Colts,  172 
V.  Lindsay,  167 


M. 


Maccubbin  r.  Cromwell,  371 
Mace,  Eekert  v.  144 
Machen  v.  Macben,  335 
Macher  v.  Moore,  167 
Mack,  Uzzel  v.  191 
Mackay  v.  Rhinelander,  507 
Mackie,  Rapelye  v.  93 
V.  Davis,  189 
Macomber  v.  Parker,  94 
Macon,  Garrett  v.  365 
Madden,  Chamberlain  v.  408 
Maddox,  Wiles  v.  398 
Maffett,  Cambioso  v.  162 
Magee  v.  Billingsley,  509 
Magill,  Browning  v.  498 
Magniac  v.  Thompson,  202,  373 
Magoffin  V.  Patton,  354 
Magruder,  Semmes  v.  440 
Maguire,  Clark  v.  140 
Mahone  v.  Bank,  180 
Mahon,  Early  v.  140,  159 
Mahurin  v.  Bickford,  178  • 

V.  Pearson,  193 
Maise  v.  Garner,  155 
Maitland,  Chamberlain  v.  178 
Makenna,  Clark  v.  486 
Makepeace,  Collins  v.  156 
Borry  v.  179 
Mallier,  Petty  v.  485 
Malin,  Jackson  v.  155 

Wood  V.  242 
Mails  V.  Jones,  180 
Mallory,  Smith  v.  180 
Malory,  Clark  v.  78 
Maltby,  Knapp  v.  134 
Man,  Crocker  v.  53 
Manderson  v.  Lukens,  353 
Mandeville,  Sheeby  v.  202,  389,  396 
AVelch  V.  55,  56 
Welsh  V.  519 
Maneely  v.  McGee,  203 
Manella  v.  Barry,  500 
Manhattan  Company  v.  Brower,  172 
Manlove,  Ilackett  v.  105 
Manly,  Bradford  v.  509 
Mann,  Ferris  v.  202 

Hatch  V.  162 

Sigourney  v,  384 

V.  Commission  Company,  501 

V.  Company,  161 

V.  Mann,  200 

V.  Marsh,  206 

V.  The  State,  353 
Manners,  Head  v.  138 
Maiming,  Norwood  v.  178 
Wudsworth  v.  404 


Manning  v.  Johnson,  472 
V.  Manning,  166 
V.  Norwood,  207 
Manon,  Anderson  v.  192 
Manufacturing  Company,  Despatch  Packets 

V.  504 
Manufacturing  Company,  Emerson  v.  503 
McDaniels  v.  190 
Mitchell  V.  55 
Powell  V.  66 
V.  Farquhar,  507 
V.  Lawrence,  506 
V.  Waterston,  501 
Manwell  v.  Briggs,  125 
Marcy  v.  Crawford,  158 
Marcune  v.  Hereford,  56 
Mareau,  Hinkley  v.  242 
Margerger  v.  Pott,  189 
Marick,  Burnside  v.  384 
Marienthal  v.  Shafer,  54 
Mark,  Roosevelt  v.  172 
Markham  v.  Jones,  406 
Marks,  Stockwell  v.  66 
Marmaduke,  Haj-den  v.  370 
Maroin,  Seymour  v.  161 
Marr  v.  McCullough,  353 
Marrow,  Cox  v.  53 

Gilchrist  v.  507 
Marsh,  Brown  v.  392 

Burchell  v.  263 
Cheddick  v.  132 
Folsom  V.  330 
Gibbs  V.  345 
Mann  v.  206 
Savoye  v.  242 
V.  Bank,  208 
V.  Wheeler,  362 
Marshall,  Braynard  v.  242 
Loomis  V.  404 
Smith  V.  448 
McAllister  V.  210 
Robinson  v.  138 
Shelton  v.  159 
V.  Davis,  52 
V.  De  Groot,  383 
V.  Dudley,  178 
V.  Gougler,  156 
V.  Miller,  487 
V.  Morris,  374 
V.  Mosely,  339 
Marston,  Parker  v.  422 
V.  Baldwin,  52 
Marten  v.  Bebo,  486 
Martendale  v.  FoUett,  156 
Martin,   Commonwealth  v.  362 
Compton  V.  144 
Gayle  v.  381 
Hunter  v.  384 
Mills  V.  52 
Overturf  v.  193 
Penny  v.  204 
Rigden  v.  262 
Smith  V.  390 
Stevens  v.  156 
Warner  v.  502 
V.  Black,  143 
v.  Chapman,  262 
V.  Dwelly,  480 


xlviii 


INDEX    TO    AMERICAN    CASES    CITED. 


Martin  v.  Draher,  205 
V.  Good,  150 
V.  Kilbourne,  179 
V.  Martin,  339 
V.  Walton,  503 
Martin's  App.,  180 
Marvin,  Biatlfoid  v.  190 

Brinkerhoff  v.  172,  401 
Morrison  v.  191 
V.  Foson,  143 
Marys  v.  Anderson,  339 
Mason,  Boutwell  v.  205 
Chomqua  v.  504 
Davenport  v.  138  ■ 
Dean  v.  507     ' 
Duffee  V.  507 
Logan  V.  206 
Peebles  v    140 
V.  Chappel],  508 
V.  Haile,  240 
V.  Jonett,  394 
V.  Thompson,  94 
V.  AVick'ersham,  202 
Massey,  Stone  v.  353 

V.  Craine,  138 
Masten,  Cornell  v.  392 
Mather,  Alsop  v.  383 

Comfort  V.  341 
Proctor  V.  204 
V.  Bush.  242 
V.  Church,  52 
Mathews  v.  Aiken,  190 
Mathis  V.  Mathis,  444  ^ 

Matlack,  Meckle  v.  415 
Matlock  V.  Matlock,  384 
Matter  of  Babcock,  190 

Bostwick,  367,  371 
Burke,  357 
Chipman,  401 
Christie,  371 
Davison,  358 
Harlund,  357 
Kane,  357 
Kleen,  219 
Kottman,  489 
McDowles,  491 
Mitchell,  489 
Smith,  398,  401,  516 
■\Valdron,  490 
Wolestonecraft,  491 
Matteson,  Waterman  v.  54 
Matteto,  North  v.  207 
Matthews,  Baird  v.  508 

Forsyth  v.  378 
Fulton  V.  193 
Goodyear  v.  317 
Hampton  v.  503 
V.  Felch,  406 
Matthey  r.  Gaily,  394 
Mauran  v.  Lamb,  56,  497 
Maur  v.  Ileffernan,  189 
Maxcy,  Odiorne  v.  501 
Masey  v.  Averill,  384 
Maxim  v.  Morse,  139 
Maxwell,  Davis  v.  262 
Erwin  v,  507 
Perry  v.  445,  449 
May,  McVicker  v.  378 


May,  Pnvderv.  408 

V.  Mitchell,  504 
Mayberry,  Fales  v.  162 

Newell  V.  155 
Maybin  v.  Coulon,  162 
Maynard,  Houghton  v,  242 
Townsend  v.  374 
Mayor  v.  Trustees,  178 
Mayer,  Darby  v.  432 
Maywood  v.  Johnston,  486 
Maze  v.  Miller,  202 
Mazy,  Gardner  v.  159 
McAfiel,  Kennedy  v,  125 
McAllister,  Greeves  v.  138 
Sebley  v.  193 
V,  Denin,  393 
V.  Marshall,  210 
v.  Sprague,  392 
McAlly,  Chalk  v.  127 
McAlpin  V.  Cassidy,  504 

V.  AVoodrufi",  334 
McArthur  v.  Lane,  380 
McBride,  Shaw  v.  446 
McBurney,  Cox  v,  385 
McCain,  Wood  v.  502 
McCalla,  Grove  v.  140 
MeCalmont  v.  Peters,  173 
MeCamly,  Knowles  v.  487 
McCampbell  v.  MeCarapbell,  ISO 
McCandless  v.  Hadden,  3S3 
McCandlish  v.  Newman,  94 
McCarty  v.  Emlen,  397 
McCauley  v.  Cleveland,  404 
MoCausland  v.  Bell,  179 
McCheury  v.  Jackson,  200 
McClanahan,  Byers  v.  156 

Woodford  v.  503 
V.  Davis,  284,  427 
McClanchan,  Siter  v.  362 
McClellan,  Brengle  v,  180 

AVater  v.  105 
McClelland,  Clarke  v.  135 

v.  Remsen,  105 
McClemans,  Hemphill  v.  139 
McClenaghan,  AVorrel  v.  134 
McClendy,  Loring  v.  333 
McClosbey, -Henry  v.  362 
McClure,  Barker  v.  194 

Duncunson  v.  162 
Hutchinson  v.  172,  210 
v.  Pyott,  339 
V,  Richardson,  504 
McClurg  V.  Kingsland,  314,  318 

V.  Lecky,  211 
McCoan,  Mullin  v.  192 
McCoUum,  The  Ordinary  v.  207 
McComb  T.  Keteridge,  192 
McCombs,  Acheson  v.  426 
McConnell,  Benjamin  v.  392 
Boyd  v.  156 
Hodson  V.  200 
V.  McConnell,  424 
V.  Stettinius,  204 
McCormick,  Middletown  v.  160 
V,  Irwin,  191 
V.  Seymour,  317 
V.  Ta'lcott,  317 
V.  Young,  160 


INDEX   TO   AMERICAN    CASES   CITED. 


xlix 


McCoy,  Crisler  v.  206 
V.  Artcher,  510 
V.  McKowen,  501 
V.  The  County,  56 
McCracken  v.  Clarke,  263 
McCrary,  Smith  v.  362 

V.  Carrington,  203 
McCraw  v.  Edwards,  421 
McCrea,  Le  Page  v.  202 

V.  Puimont,  189 
McCredie,  James  v.  504 
McCroan  v.  Pope,  486 
McCulloch,  Boyer  v.  144 
Walker  v.  392 
V.  McKee,  503 
McCuUough,  Marr  v.  353 

Thompson  v.  510 
V.  Dashiell,  397 
V.  Porter,  87 
V.  Summerville,  407 
McCullough's  Appeal,  471 
McDaniel,  Perminter  v.  157 
McDaniels  v.  Lapham,  202 

V.  Manufacturing  Company,  190 
McDermott,  Leaky  v.  498 

V.  Lawrence,  386 
McDevitt,  Brainard  v.  143 
McDonald,  Robinson  v.  125 
V.  Beach,  396 
V.  McDonald,  55 
V.  Pickett,  205 
McDowell,  Lester  v.  94 

Rosevelt  v.  383 
V.  Bank,  190 
V.  Canal  Company,  207 
V.  Hewitt,  94 
V.  Murdock,  421 
V.  Oyer,  143 
McElhare,  Agnew  v.  161 
McElwain,  Simons  v.  376 
McElwee,  Thomas  v.  180 
McFadden  v.  Fortier,  207 
McFarland,  Brown  v.  383 

Cameron  v.  162 
V.  Farmer,  94 
V.  Irwin,  172 
V.  Newman,  507 
McFarlane,  Reynolds  v.  206 
McFerran,  Baker  v.  432 
McGaughey  v.  Henry,  348 
McGee,  Maneely  v.  203 
McGhee,  Winters  v.  127 
McGillicuddy,  Bullen  v.  202 
McGillis,  Beck  v.  445 
McGinn  v.  Holmes,  203 
McGinnis,  Hoag  v.  133 
McGlaughlin  v.  McGlaughlin,  445 
McGlorin  v.  Henderson,  134 
McGran  v.  Davenport,  335 
McGrath,  Scott  v.  502 

V.  Association,  304 
McGreary  v.  Osborne,  69 
McGrew  v.  Browder.  498 
McQuire  v.  Evans,  445 
McGuirn  v.  Holmes,  202 
Mcllree,  Guy  v.  211 
Mcllvain,  Stoddard  v.  503 
Mcllvaine  v.  Gethen,  470 


Mcllvain,  Wafles  v.  1 25 
Mclnlay,  Austin  v.  172 
Mclntire,  Sawyer  v.  134 
Mclntyre  v.  Kennedy,  204 
Mclver,  Yrquhart  v.  503 
McKean,  Fleeman  v.  94 

Plummer  v.  133 
McKee,  Berryhill  v.  408 
Cruse  V.  348 
Hanks  v.  508 
V.  Commonwealth,  206 
V.  Hicks,  158 

V.  Insurance  Company,  253 
V.  McCulloch,  503 
McKeegan,  Foley  v.  132 
McKeen's  Appeal,  339 
McKennan  v.  Phillips,  375 
McKenzie,  HoUingshead  v.  143 
Royall  V.  370 
v.  Nevins,  200 
McKinn  v.  Willis,  241 
McKinley,  Butterworth  v.  90 

Gaines  v.  503 
McKinney,  Cox  v.  426 
v.  Pope,  166 
v.  Waller,  192 
McKinnis  v.  Oliphant,  125 
McKinstry  v.  Solomons,  262 
McKleroy,  Bowman  v.  105 
McKonkey's  Appeal,  346 
McKowen,  McCoy  v.  501 
McKown,  Thurston  v.  497 
McLagin,  Corliss  v.  66 
McLain  v.  Carson,  383 
McLarren  v.  Robinson,  393 
McLauchlan,  Ross  v.  206 
McLaughlin  v.  Bovard,  202 
V.  Horton,  510 
V.  AVaite,  78 
McLaurin  v.  Parker,  161 
McLaurine  v.  Monroe,  394 
McLean  v.  Green,  508 
McLellan,  Winsor  v.  105 
McLemore,  United  States  v.  207 
V.  McLemore,  354 
V.  Powell,  192 
McLeod,  Poole  v.  390 

Whitifred  v.  508 
McLester,  Grant  v.  162 
McMahan  v.  Murphy,  389 
McMahon  v.  Allen,  54 
McMichael,  Jones  v.  405 
McMicken  v.  Beauchamp,  155 
McMillan,  Capel  v.  348 

Richards  V.  172 
V.  McNeill,  240 
McMorris  v.  Herndon,  138 
McMuUin,  Larkin  v.  374 

V.  Bank,  190 
McMurtry,  Crump  v.  190 
McMurray  v.  Montgomery,  370 
McNair,  Crumpston  v.  189 
V.  Thompson,  133 
McNeill,  McMillan  v.  240 

Stoney  v.  157 
McPherson  V.  Leguire,  127 

V.  Reeves,  140 
McQueen  v.  Chouteau,  123 


INDEX    TO    AMERICAN    CASES   CITED. 


McQuewan,  Bloomer  v.  314 
McTaggart,  Vanderhorst  v.  510 

V.  Rose,  106 
McTa^ish  v.  Carroll,  206 
McVicker  v.  May,  378 
McWhann,  Burrows  v.  190 
Meaeh  v.  Meach,  422 
Meacham,  Lott  v.  426 
Mead.  Moses  v.  508 

Smith  T.  161,  241 
V.  Dayton,  242 
Y.  Wheeler,  134 
Meade,  lograham  v.  34T 
Mealing,  Steele  v.  196 
Meany  v.  Head,  52 
Meason's  Estate,  178 
Meekle  v.  Matlack,  415 
Medbury,  Phillips  v.  471 

V.  Hopkins,  240 
Meddis,  Cbrister  v.  445 
Meek,  Newman  v.  207 
Meeker,  Davis  v.  607 

Tindale  v.  179 
Mebaffey,  Johnson  v.  66 
Meigs,  Penniman  v.  240 
Melendy,  Boutelle  v.  159 
Molhorn,  Kock  v.  189 
Mellen  v.  Baldwin,  125 
Melius  V  Silsbee,  316 
Meng,  Pleasants  v.  204 
Menseh,  Fox  v.  162 
Mereein,  The  People  v.  489 
Mercer  v.  Stark,  139 

V.  Tinsley,  105 
Mercer  Co.  v.  Haekett,  56 
Merchant  v.  Merchant,  421 
Merchants'  Ins.  Co.,  Winslow  v.  66,  69 
Mercier,  Allen  v.  100 

Atwood  V.  399 

Bank  v.  207 

V.  Banks,  207 
Meriam  v.  Harsen,  485 
Merlatt,  City  v.  207 
Merrell,  Collins  v.  167 

Crawford  v.  159 

V.  Legrand,  162 
Merrian,  Isley  v.  242 

V.  Wilkins,  140 
Merrick,  Bank  v.  162 

V.  Avery,  105 

V.  Bank,  389 

V.  Gordon,  405 
Merril,  French  v.  125 
Merrill,  Pettengill  v.  86 

V.  Merril,  133 

V.  Rinker,  398 
Merrit  v.  Clow,  200 

V.  Lumbert,  126 
Merritt,  Roget  v.  202 

V.  Lincoln,  193 

v.  Windley,  426 
Merriweather  v.  Herran,  55 
Merry,  Buffum  v.  89 

Murphy  v.  143 
Merryman  v.  State,  191 
Messenger,  Bank  v.  392 

Heckman  v.  211 
Mesick  v.  Mesick,  441 


Metcalf,  Sargent  v.  94 
Methuen  v.  Hayes,  504 
Metzer,  Hench  v.  126 
Metzgar,  Hardy  v.  498 
Meyer,  Casilly  v.  334,  354 

V.  Muscatine,  56,  498 
V.  Peck,  121 
Meyers  v.  Byerly,  162 
Michener  v.  Dale,  421 
Middlebrook  v.  Corwin,  67,  71 
Middkton  v.  Rice,  470 

v.  Robinson,  125 
Middletown  v.  McCormick,  160 
Mifflin  V.  Neal,  334 
Milburn  v.  Belloni,  503 
Miles,  Hayes  v.  371 

V.  Wister,  357 
Milham,  Henry  v.  518 
Mill,  Carlton  v.  196 
Millard,  Cheeseborough  v.  190 
Millenger,  Bloomer  v.  314 
Miller,  Andress  v.  211 

Atwell  V.  93 

Beebe  V.  381,  394 

Butler  V.  204 

Commonwealth  v.  178,  191,  203 

Clark  V.  395 

Dewes  v.  166 

Fry  V.  106 

Furman  v.  508 

Hazletine  v.  503 

Huckleman  v.  143 

Marshall  v.  487 

Maze  V.  202 

Pruitt  V.  503 

Shock  V.  393 

Shotwell  V.  394 

Smith  V.  510 

Trustees  v.  192 

Tusbury  v.  162 

V.  Baker,  68 

T.  Bank,  407 

V.  Bartlett,  404 

V.  Beckley,  194 

V.  Clement,  72 

T.  Elliott,  133 

V.  Estill,  399 

V.  Gilleland,  155 

v.  Goodwin.  374 

V.  Hall,  242 

V.  Hower,  144 

T.  Jeflfress,  421 

V.  Miller,  206 

T.  Ord,  190 

V.  Paulsell,  57 

V.  Pendleton,  190 

V.  Plumb,  66,  69 

V.  Porter,  191 

V.  Read,  156 

V.  Reed,  389 

V.  Sawyer,  196 

V.  Stein,  192 
V.  Stem,  194 

T.  Stewart,  193 

V.  Trevilian,  205 

V.  AA' illiamson,  486 

T.  Wilson,  126 

V.  Woodward,  190 


INDEX   TO   AMERICAN    CASES   CITED. 


li 


Miller   v.  Yarborough,  508 

V.  Webb,  200 
Milliken  v.  Brown,  202 
Mills,  Brewer  v.  191 
Couch  V.  394 
Law  V.  210 
Leinar  v.  70 
Lumpkin  v.  190 
Mottram  v.  193 
Murdock  v.  502 
Sahlman  v.  93 
V.  Martin,  52 
V.  Wyman,  138 
Miner  V.  Miner,  489 
Mingle,  Shenck  v.  138,  162 
Minor  v.  Bank,  389 
Minter's  Appeal,  341 
Minton  v.  Moore,  263 
Minturn,  Seymour  v.  201 
Missionary  Society  v.  Wadhams,  485 
Missroon  v.  Waldo,  508 
Mitchell,  Bradley  v.  53 

Doty  V.  486 

Elworth  V.  160 

May  V.  504 

Moerhing  v.  485 

Printup  V.  156 

Stone  V.  166 

Tayman  v.  507 

Waugh  V.  262 

Windows  v.  421 

Wyman  v.  241 

V.  Gotten,  161 

V.  Dale,  206 

V.  Manufacturing  Co.,  55 

V.  Sheppard,  123 

V.  Smith,  162 

T.  Sproul,  502 

V.  AVinslow,  55 
Mitchells  v.  Johnsons,  345 
Mitchum,  Divine  v.  384 
Mixer,  Halleck  v.  125 
V.  Coburn,  508 
Mizell,  Bailey  v.  190 
Moatz,  Knox  v.  190 
Moerhing  v.  Mitchell,  485 
Moderwell  v.  Mullison,  384 
Mofifat,  Cook  V.  241 

V.  Strong,  335 
Moffit,  Dearing  v.  139 
Mohn  V.  Hiester,  178 
Molyneaux  v.  Collier,  202 
Moncure  v.  Dermott,  159 
Monelle,  Hays  v.  98 

V.  Smith,  172 
Monis,  Deerow  v.  125 
Monetrie,  Hare  v.  242 
Monroe,  Ferson  v.  397 

Gray  v.  240 

McLaurine  v.  394 

Vance  v.  207 

V.  Ezzell,  395 
Monrow,  Thompson  v.  178 
Montague  v.  Dent,  67 
Monteiro,  Car.-on  v.  204 
Montelius  v.  Montelius,  172 
Montgomery,  Falconer  v.  262 
McMurray  v.  370 


Montgomery   v.  Bank,  486 

V.  Dillingham,  194 
V.  Henderson,  373 
V.  Lampton,  139 
Moody,  Holland  v.  475 

Hutchinson  v.  192 

Naylor  v.  195 

V.  Payne,  398 

V.  Sewall,  380 
Moerv.  Allen,  262 
Moers,  Shearer  v.  262 
Moore,  Association  v.  206 

Avery  v.  125 

Bryant  v.  501 

Bunn  V.  207 

Church  V.  189 

Croft  V.  191 

Dillard  v.  608 

Dominick  v.  354 

Gilchrist  v.  54 

Henderson  v.  202 

Jones  V.  140 

Mac  her  v.  167 

Minton  v.  263 

Proctor  V.  242 

Quin  V.  55 

Rouse  V.  504 

Smith  V.  105 

Spruill  V.  354 

Treadwell  v.  206 

Wesley  Church  v.  189 

Wiley  V.  157 

Williams  v.  189 

Woods  V.  446 

V.  Bare,  404 

V.  Barry,  425 

V.  Bickham,  155 

V.  Briggs,  202 

V.  Brooks,  335 

V.  Holland,  90 

V.  Laugham,  510 

V.  Lyons,  353 

V.  Moore,  477 

V.  Piercy,  93 

V.  Platte  County,  132 

V.  Smith,  404 

V.  Tandy,  441 
Moore's  Appeal,  384,  390 
Moorehead  v.  Bank,  205 
V.  Snyder,  73 
Morange  v.  Edwards,  57 
Moreau,  Brigham  v.  160 

V.  Safifarans,  384 
Morehead,  Jones  v.  318 
Morey  v.  Shearer,  172 
Morford,  Douglass  v.  125 
Morgan,  Haggart  v.  263 
Roberts  v.  506 
State  V.  182 
V.  Elam,  486 
V.  Fencher,  510 
V.  Perkins,  93 
V.  Richardson,  408 
V.  Watmough,  398 
Mo!-gan's  Appeal,  210 
Moriarty,  Harlan  v.  200 
Morland  v.  State,  193 
Morrell  v.  Insurance  Company,  252 


lii 


INDEX   TO   AMERICAN   CASES   CITED. 


Morrell  v.  Wallace,  507 
Morrill  V.  Otis,  IftS 
Morris  Canal  v.  Van  Vorst,  203 
Morris,  Bnj'ne  v.  2f)3 
Clason  V.  190 
Davis  V.  172 
Lathrop  v.  153 
Marshall  v.  374 
Thatcher  v.  160 
V.  Bawney,  125 
V.  Evans,  191 
V.  Huntington,  315 
V.  Oakford,  191 
V.  01  wine,  210 
T.  Owen,  347 
T.  Page,  191 
V.  Vanderen,  155 
Morrison,  Bell  v.  140 
Bird  V.  384 
Jack  V.  189 
Pen  rod  t.  378 
Pursley  v.  502 
Beid  V.  153 
V.  Berkey,  205 
V.  Blodgett,  397 
v.  Hartman,  194 
V.  Marvin,  191 
V.  Taylor,  501 
Morrow  v.  Brenizer,  362 
V.  Brenizet,  58 
V.  Tnrney,  105 
Morse,  Bentley  v.  140 
Maxim  V.  139 
O'Reilly  v.  312,  317 
Morton,  Coulon  v.  162 

Van  Amringe  v.  155 
Mosely,  Cook  v.  507 
Boyd  V.  99 
Eve  V.  202 
Marshall  v.  339 
Sessions  v.  421 
V.  Taylor.  442 
Moses,  Lowden  v.  241 
Potter  V.  404 
Snell  V.  507 
V.  Mead,  508 
Moter  V.  Dorsett,  161 
Motly  V.  Jones,  404 
Mott,  Brown  v.  153 

V.  Mott,  133,  164 
V.  Palmer,  67 
T.  Petrie,  390 
Mottram  v.  Heyer,  98 
V.  Mills,  193 
Mount  V.  Bradford,  243 
V.  Cubberly,  125 
Mountjoy,  Lowrie  v.  426 
Mowatt  V.  Carson,  348 
Mowry  v.  Adams,  189 
V.  Todd,  519 
V.  Walsh,  498 
Moyer,  Dixon  v.  318 
Mudd,  Weather  v.  200 
Mudgett,  Smith  v.  138 
Muir  V.  Leitch,  397 
Muldon  V.  Whitlock,  202 
Mullen  V.  Wilson,  375 
Muller  V.  Insurance  Company,  252 


Mullin  V.  McCoan,  192 
Mullins,  nines,  v.  357 
Mullison,  Moderwell  v.  384 
Mulvany  v.  Rosenberger,  511 
Mumford,  Greene  v.  370 
Mundy  v.  Culver,  134 
Munford,  Nicol  v.  397 

V.  The  Overseers,  192 
Manroe  v.  Cooper,  497 
Munsell  v.  Temple,  162 
March,  Chapman  v.  506 
Murdock,  Crossland  v.  432 
McDowell  V.  421 
V.  GIfFord,  66 
V   Harris,  66,  70 
V.  Mills,  502 
V.  Ratcliffe,  333 
Murgatroyd,  Bundle  v.  374 
Murphy,  Backus  v.  399 
Brown  v.  509 
Kelsey  v.  179 
McMahan  v.  389 
Reed  v.  404 
V.  Bank,  390 
V.  Merry,  143 
Murrah  v.  Judah,  153 
Murray,  Carson  v.  376 
Davis  V.  510 
Jones  V.  509 
Lovejoy  v.  394 
Thompson  v.  486 
V.  Carothers,  502 
V.  Lardner,  56,  498 
V.  Murray,  397 
Murril  v.  Neill,  39*8 
Mureau  v.  Langley,  166 
Muscatine,  Meyer  v.  56,  498 
Musgrave  v.  Glasgow,  193 
Musgrove  v.  Gibbs,  161,  202 
Musselman,  Axers  v.  204 
Musson  V.  Fales,  159 
Mutter,  Blake  v.  384 
Myers,  Dixon  v.  93 
Wolfe  V.  121 
V.  Beeman,  200 
V.  Myers,  lib! 
T.  Welles,  203 
Myley,  Bank  v.  385 
Mytinger  v.  Spinger,  380 

N. 

Nagle,  Iddings  v.  72 
Nagle's  Appeal,  362 
Naglee,  Ellig  v.  370 
Nail  Factory,  Odwine  v.  317 
Nance,  Tarver  v.  153 
Nantick,  Dedham  v.  491 
Napier  v.  Catron,  408 

V.  Davis,  471 
Nash,  Nixon  v.  398 
V.  Drew,  503 
V.  Herraosilla,  133 
Nathans,  Pott  v.  190 
Nave  V.  Berry,  255 

V.  Fletcher,  203 
Navigation  Co.,  Rail  Road  Co.  v.  123 
Navigation  Co.  v.  Fenlon,  263 


INDEX   TO   AMERICAN   CASES   CITED. 


liii 


Navigation  Co.  v.  AVright,  164 
Naylor  v,  Dennie,  98 

V.  Moody,  195 
Neagle,  Jones  v.  408 
Neal,  Keeler  v.  203 
Mifflin  V.  334 
Neall,  Kincaid  v.  200 
Neef,  Anderson  v.  389,  393 
Neff  V.  Burr,  172 
Neff's  Appeal,  191 
Negley,  Evans  v.  161 

Ihmsen  v.  407 
Negroes  v.  Plumraer,  346 
Neighbour,  Emery  v.  485 
Neill,  Murril  v.  398 
Neilson  Wetherill  v.  507 

v.  Dickerson,  507 
Nelson,  Daniel  v.  408 
Stanley  v.  159 
V.  Garland,  240 
V.  Cornwell,  285 
V.  Cowing,  503 
V.  Felder,  179 
T.  Sharp,  172 
V.  Stephenson,  120 
Nesbit  V.  Burry,  86 

V.  Patton,  408 
Nesmuth  v.  Drum,  139 
Nettles  v.  Barnett,  124 
Nettleton  V.  Dinehart,  128 

Walters  V.  128 
Nevins,  McKenzie  v.  206 
Nevison  v.  Taylor,  334 
Newall,  Thrall  v.  510 
Newberry,  Bronson  v.  240 
Newcomb  v.  Presbrey,  155 

V.  St.  Peter's  Church,  445 
Newcomer,  Dustin  v.  123 
Newell  V.  Mayberry,  155 
V.  Price,  195 
V.  Williams,  151 
Newhall,  Tuckerman  v.  394 
V.  Vargas,  102 
V.  Vingas,  98 
Newkirk,  Livingston  v.  180 
Newlin  v.  Freeman,  485 

V.  Newlin,  486 
Newman,  Bell  v.  211,  400 
McCandlish  v.  94 
McFarland  v.  507 
V.  Bean,  398,  404 
V.  Jeune,  53 
V.  Labeaurae,  263 
v.  Meek,  207 
Newport  v   Cook,  357 
Newton,  Drake  v.  144 
Freeman  v.  55 
Graham  v.  178 
Niblo  v.  Clark,  192 
Nice  v.  Turrentine,  178 
Nicholas  v.  Adams,  420 
Nicholl,  United  States  v.  194 
Nichols,  Freshwater  v.  52 
Jacks  V.  161 
Jackson  v.  162 
Sawyer  v   94 
V.  Bliss,  161 
V.  Denny,  354 


Nichols   V.  Douglass,  192 
V.  Hewit,  172 
v.  Hughes,  407 
V.  Johnson,  155 
V.  Buggies,  162.  318 
V.  Schofield,  200 
V.  Stewart,  161 
Nicholls  V.  Nicholls,  492 

V.  Peak,  365 
Nicholson  v.  Taylor,  93 

Leadenham  v.  362 
Patton  V.  161 
V.  Elton,  125 
V.  Fearson,  159 
Nickerson,  Pope  v.  257 
Nicklin,  Chew  v.  363 
Nicoll  V.  Mumford,  397 
Nightingale  v.  Withington,  491 
Niles,  Bank  v.  162 

Rodgers  v.  509 
V.  Commissioners,  262 
Nimmo  v.  Commonwealth,  180 
Niver  v.  Rossman,  133 
Nixon,  Carroll  v.  140 

V.  Hyserott,  503 
V.  Jenkins,  138 
V.  Nash,  398 
Noaks,  Davis  v.  203 
Noble,  Burke  v.  393 
Carman  v.  140 
Parks  V.  375 
V.  Bates,  133 
T.  Walker,  161 
Nobleborough,  Varner  v.  203 
Noland,  Blade  v.  157 
Nolen  V.  Crook,  200 
Nolte,  Low  V.  262 
Norcross  v.  Boulton,  125 
Norfleet  v.  Edwards,  157 
Norman  v.  Storer,  285 
Norment  v.  Hall,  404 

V.  Smith,  126 
Norris,  Evans  v.  153 

Harwitz,  v.  348 
O'Brien,  v.  99 
V.  Crumniie,  193 
V.  Hammett,   393 
Norsworthy,  Upchurch  v.  426 
North  V.  Mattell,  207 

V.  Turner,  55 
North  Pa.  Coal  Co"s.  App.,  386 
Northampton  Paper  Mills  v.  Ames,  127 
Northrop,  Booth  v.  125 
Norton,  Bank  v.  504 

Winslow  V.  119 
V.  Cook,  240 
V.  Soule,  190 
Norvell,  Postmaster  v.  206 
Norwood,  Lewis  v.  242 

Manning  v.  207 
V.  Manning,  178 
Nottingham  v.  Giles,  159 
Nourse,  Walsh  v.  242 
Nowell  V.  Pratt,  502 
Noyes,  Ins.  Co.  v.  472 

V.  Bliickeman,  487 
V.  Brown,  55,  518 
V.  Cushman,  404 


liv 


INDEX    TO   AMERICAN    CASES   CITED. 


Nunn  V.  Owens,  284,  427 
Nutt,  Commonwealth  v.  489 

Secomb  v.  99 
Nutting  V.  Railroad  Co.,  121 
V.  Colt,  404 

0. 

Oakford,  Morris  v.  191 
Oatfield  V.  Waring,  138 
O'Brien,  Farnham  v.  138 
Lanata  v.  509 
V.  Norris,  99 
Oberman  v.  Clemmons,   162 
O'Conner  v.  Corbit,  127 
OConnor,  Wain  v.  71 
ODonnell  v.  Sevbert,   55 
Odell,  Deyell  v/l94 
Odeur,  Byrd  v.  2(32 
Odineal  v.  Barry,  162 
Odiorne  v.  Maxey,  501 
Odlin  V.  Greenleaf,  189 
Odom,  Hatchell  v.   138 
Odwine,  Exter  v.  346 

V.  Nail  Factory,  317 
V.  Winiiley,  316 
Ogden,  Allen  v.  501 
Bruen  v.  53 
Golder  V.  94 
Shepard  v.  189 
V.  Astor,  403 
V.  Saunders,  240 
Okeson,  Brubaker  v.  193 
Okie  V.  Spencer,  204 
Okinson  V.  Flickinger,  263 
Olcott,  Hutchins  v.  204 
Terry  v.  159 
V.  Ratbbone,  203 
Old,  Squires  v.  426 
Oldam,  Place  v.  180 
Olden  V.  Hallet,  240 
Oliphant,  McKinnis  v.  125 
Oliver,  Buckingham  v.  394 
Piatt  V.  408 
Pratt  V.  384 
Tinsley  v.  190 
V.  Walsh,  54 
Olmstead,  Beals  v.  507 

The  People  v.  490 
Olney,  Pearce  v.  367 
Olwine,  Morris  v.  210 
Olympic  Theatre  Case,  67 
Onibony  v.  Jones,  67 
O'Reilly  V.  Morse,  312,  317 
Ord,  MUler  v.  191 
Orillion,  Follain  v.  207 
Ormsbee  v.  Davis,  408 
Osborn,  Green  v.  339 

Jackson  v.  155 
Osborne,  Dewitt  v.  182 

McGreary  v.  69 
V.  Brennan,  406 
v.  Van  Home,  357 
Osgood  V.  Breed,  485 
V.  Lewis,  506 
Otis,  Morril  v.  155 
Otts  V.  Alderson,  511 
Outwater,  Ruckman  v.  57,  71 


Outwater  v.  Dodge,  93,  94 
Overbaugh,  Reese  v.  156 
Overby,  Gee  v.  394 
Overholtz's  Appeal,  386 
Overton,  Hamilton  v.  133 
V.  Phelan,  509 
V.  Sawyer,  424 
V.  Williston,  66 
Overturf,  Husten  v.  138 
V.  Martin,  193 
Owen,  Doughty  v.  162 
Morris  v.  347 
V.  Boerum,  263 
Owens,  Boutel  v.  172,  174 
Nunn  V.  284,  427 
Watson  V.  203,  396 
V.  Bowie,  241 
Owings  V.  Hall,  504 
Oxley,  Tucker  v.  397 
Oyer,  McDowell  v.  143 


Pacard,  Van  Ness  v.  67,  69 
Pack  V.  Wakeley,  262 
Packard,  Pain  v.  193 

Southworth  v.  381 
V.  The  Louisa,  82 
Packwood,  Taber  v.  334 
Paddock  v.  Colby,   140 
Page,  Butler  v.  66 
Heath  v.  161 
Kelly  V.  196 
Morris  v.  191 
V.  Kendrick,  374 
V.  Webster,  193 
Pahlman  v.  Graves,  401 
Paige,  Fuller  v.   105 
V.  Stone,   503 
Pain  V.  Packard,  193 
Paine,  State  v.  489 

V.  Edsell,  155 
Palmer,  Deny  v.  153 

Gatewood  v.  178 
Grayv.   385 
Jones  V.  144 
Love  V.  162 
Mott  V.  67 
V.  Garrington,  502 
V.  Goodwin,  241 
V.  Stebbins,  164 
Pancoast,  Allen  v.  57 
Pangburn  v.  Partridge,  52 
Parish  v.  Stone,  424 
Parke,  Earnest  v.  139 
Parker  v.  Brown,  433 

Macomber  v.  94 

McLaurin  v.  161 

Perkins  v.  518 

V.  Biglow,  160 

V.  Carter,  138 

V.  Chambers,  426 

V.  Cousins,  161,  202,  393 

V.  Crane,  138 

V.  Culvertson,  189 

V.  Elder,  380 

V.  Grout,  55,  66 

V.  Marston,  422 


INDEX   TO   AMERICAN    CASES   CITED. 


Iv 


Parker,  Woodcock  v.  316 
Parks,  Ayres  v.  507 

V.  Ingram,  153 
V.  Noble,  375 
Parkhurst,  Elkins  v.  162 

Kinsman  v.  164 
Parkinson's  Estate,  362 
Parmentier  v.  Gillespie,  172 
Parnell,  Bncot  v.  339 
V.  King,  262 
V.  Price,  192,  194 
Parramore,  Randall  v.  205 
Parrish  v.  Gray,  193 
Parsons,  Smith  v.  240 
Willis  V.  200 
V.  Campbell,  68,  71 
V.  Copeland,  66 
V.  State,  161 
V.  Webb,  502 
V.  Winslow,  162,  470' 
Partridge,  Pangburn  v.  52 

Wood  V.  518 
Parvis,  Dickenson  v.  341 
Passmore,  Large  v.  161,  262 

V.  Pettit,  262 
Paterson,  Woodford  v.  144 
Pattee,  Flint  v.  424 
Patten,  Alexandria  v.  205 
Blunt  V.  331 
Rufjgles  V.  394 
V.  Tallman,  432 
Patterson,  Bispham  v.  408 
Cole  V.  339 
Cook  V.  78 
Lagow  V.  601 
Linard  v.  203 
Rising  V.  203 
United  States  v.  207 
V.  Brewster,  385 
V.  Crawford,  57 
V.  Ellis,  334,  354 
V.  Hawthorne,  354 
V.  Pope,  190 
Patterson's  Estate,  182 
Pattison  v.  Blanchard,  404 

V.  Hall,  207 
Patton,  Backhouse  v.  207 
Magoffin  V.  354 
Nesbit  V.  408 
Yard  v.  190 
V.  Baird,  263 
V.  Brittain.  603 
V.  Nicholson,  161 
Patrick,  Heckley  v.  390 
Paul,  Holmes  v.  153 

V.  Stackhouse,  139 
Paulin  V.  Kaighn,  196 
Paulsell,  Miller  v.  57 
Pawling  V.  Pawling,  161 
Payne,  Davis  v.  378 
Grider  v.  190 
Lewis  V.  156 
Moody  V.  398 
Swartwout  v.  161 
V.  Bank,  191 
V.  Matthews,  400 
V.  Potter,  503 
Peabcdy,  Van  Amringe  v.  502 


Peak,  Nicholls  v.  365 
Pearce,  Rackley  v.  206 
Shaw  V.  263 
V.  Austin,  56,  497 
V.  Humphries,  52 
V.  Olney,  357 
Pearsoll  v.  Chapin,  169 
Pearson,  Mahurin  v.  193 
V.  Talbot,  55 
V.  Williams,  134 
Peaslee,  Tucker  v.  408 
Peck,  Haggins  v.  390 
Meyer  v.  121 
V.  Fisher,  385 
V.  Harriott,  503 
V.  Hozier,  242 
Pecholier,  Latapee  v   201 
Peckham,  Fitch  v.  448 
Peddle,  Bagley  v.  133 
Peebles  v.  Mason,  140 
Peeples,  Tygart  v.  432 
Pegram,  Benny  v.  502 

Vironneau  v.  586 
Peirce  v.  Fuller,  133 

Walsh  V.  500 
Pell,  Drake  v.  362 
Pendleton,  Clark  v.  143 
Crews  V.  72 
Miliary.  190 
Purtevant  v.  126 
V.  Phelps,  383 
PeW,  Shields  v.  262 

V.  Butler  381 
Pennimann  v.  Hudson,  194 
V.  Meigs,  240 
V.  Pierson,  503 
Weston  V.  114 
Pennington  v.  Gettings,  421 
V.  Rowman,  262 
Pennock,  Curcier  v.  508 
Pyie  V.  66,  70 
V.  Dialogue,  316 
Pennoek's  Estate,  346 
Penny,  Hill  v.  125 

V.  Corwithe,  156 
V.  Martin,  204 
Penrod  v.  Morrison,  378 
People,  Pinckard  v.  182 
V.  Lott,  182 
V.  Tioga,  54 
Pepoon,  Sanders  v.  105 
Perclval,  Thurston  v.  162 
Perit  V.  Pitfields,  202 
Perkins,  Churchill  v.  162 
Day  V.  66 
Hacker  v.  205 
Jones  V.  202 
Morgan  v.  93 
Pettibone  v.  263 
Strong  V.  433 
V.  Fourniquet,  179 
V.  Hadley,  390 
V.  Insurance  Company,  502 
V.  Kershaw,  190 
V.  Lyman,  133,  164 
V.  Parker,  518 
V.  Pike,  82 
V.  Railroad  Company,  121 


Ivi 


INDEX    TO   AMERICAN    CASES   CITED. 


Perkins,  Woodson  v.  485 
Perminter  v.  McDaniel,  157 
Perrin,  Dows  v.  99 
Perrine  v.  Ilankinson,  40'1 
Perrotin  v.  Cuculla,  503 
Perry,  Bardwell  r.  397 

]$arr  v.  200 

Commissioners  v.  138 

Cowdin  V.  353 

Holrnan  v.  485 

Hudgins  v.  509 
Roach  V.  404 

Smith  V.  405 

Snow  V.  502 
T.  Aaron,  507 
T.  Coates,  200 

T.  Crammond,  153 

T.  Green,  163 

V.  Hudson,  504 

V.  Maxwell,  445,  449 

V.  Wilson,  126 
Ferryman,  Bliss  v.  140 
Peter  v.  Beverly,  202,  362 
Peters,  Lining  v.  364 

MeCalmont  t.  173 

v.  Barnhill,  189 

T.  Craig,  262 

V.  Farnswortb,  503 

T.  Sandtbrd,  204 

Wheaton  v.  319,  330 

Willing  V.  140,  362 
Peter's  Appeal,  440 
Petition  of  Gray,  333 
Petrie,  Mott  v.  390 
Pettengill  v.  Merrill,  86 
Pettibone  v.  Perkins,  263 
Pettigrew  v.  Chave,  153 

V.  Pettigrew,  58 
Pettit,  Passmore  v.  262 
Petty  V.  Mallier,  485 
Peytavin,  Churchwardens  v.  133 
Pfeiffer,  Sands  v.  66 
Phelan,  Overton  v.  509 
Phelps,  Filley  v.  35^7 

Harper  v.  346 

Lodge  V.  160 

Pendleton  v.  383 

V.  Johnson,  203 

T.  Willard,  89 
Phetteplace  v.  Steere,  138 
Philbrick,  Shepard  t.  72 
Phillip  V.  Kirkpatrick,  161 
Philip's  V.  Cook,  398 

V.  Crammond,  385 

V.  Beale,  348 

Brinager  v.  192 

Fenwick  v.  202 

Leedom  v.  94 

McKennan  v.  375 

Roome  V.  354 

T.  Berger,  203 

v.  Ins.  Co.  334 

V.  Medbury,  471 
Philson  V.  Bampfieid,  383 
Phinney,  Badger  v.  52 
Phipps,  Hallowell  v.  348 
Piatt  V.  Oliver.  408 
Pickering  v.  Pickering,  380 


Pickett,  Huison  v.  371 

McDonald  v.  205 
Pickney  V.  Singleton,  178 
Picot  V.  Armistead,  471 
Picquet  V.  Swan,  374,  485. 
Pierce,  Blier  v.  55 
Shed  V.  394 
Webb  V.  258 
V.  Cameron,  408 
V.  Fuller,  164 
T.  Jackson,  398 
V   Jung,  134 
V.  Knight,  206 
V.  Pierce,  202 
V.  Trigg,  384 
Piercy,  Moore  v.  93 
Pierpont  v.  Fowle,  322 
Pierson,  Penniman  v.  508 
V.  Boyd,  153 
V.  Hooker,  381 
V.  Steinmyer,  405 
Pigou  V.  French,  189 
Pike,  Buck  v.  255 

Perkins  v.  82 
•Pilgrim  v.  Dykes,  193 
Pilkington  v.  Trigg,  53 
Pinchin,  Abbot  v.  263 
Pinckard  V.  People,  182 
Pinckney,  Loundes  v.  441 
Pindall  v.  Bank,  205 
Pingry  v.  Washburn,  162 
Pinkham,  Brown  v.  155 
Pinney  v.  Fellows,  374 
Pintard  v.  Davis,  193 

V.  Tackington,  203 
Pipher,  Kerns  v.  604 

Valentine  v.  504 
V.  Smith,  384 
V.  Lodge,  191 
Pitcher  V.  Wilson,  144 
Pitfields,  Perit  v.  202 
Pitkin,  Belding  v.  162 
Pitman  v.  Robicheau,  399 
Pitts  V.  Congdon,  191 
V.  Hale,  125 
V.  Hendrix,  72 
V.  Waugh,  395 
Pitzer,  Edwards  v.  408 
V.  Harmon,  190 
Place  V.  Oldham,  180 

V.  Sweetzer,  398 
Plank  Road  Co.,  Barton  v.  159 
Piatt,  Bennett  v.  94 

Griswold  v.  240 
Insurance  Company  v.  200 
V.  Oliver,  384 
Platte  County,  Moore  v.  132 
Pleasants  v.  Meng,  204 
Plumb.  Miller  v.  66,  69 
Plumer  v.  Plumer,  71 

V.  McKean,  133 
V.  Smith,  162 
Plummer,  Alna  v.  141 

Negroes  v.  346 
Plympton,  Cravarth  v.  126 

Hogins  v.  507 
Poe  V.  Duck,  242 
Poindexter  v.  Jeffries,  374,  477 


INDEX   TO   AMERICAN   CASES   CITED. 


Ivii 


Pointer,  AVintersmith  v.  397 
Police  V.  Grant,  122 
Polk  V.  Buchanan,  404 
Pollard,  Fisher  v.  511 
Tunstall  v.  516 
V.  Ins.  Co.  56 
V.  Sears,  440 
Pollock,  Tyson  v.  203 

V.  Glassell,  485 
Pomeroy,  Danville  Bridge  Co.  v.  133 
Ransom  v.  384 
V.  Ainsworth,  304 
V.  Sigerson,  405 
Pomroy,  Temple  v.  503 

Walcot  V.  52 
Pond,  Daniels  v.  67,  71 
Poole  V.  McLeod,  390 
Poor,  Barnard  v.  94 
Gaines  v.  376 
'Swett  V.  162 
'Tiernan  V.  487 
Pope,  Kinster  v.  202 
McCroan  v.  486 
McKinney  v.  166 
Patterson  v.  190 
Wicker  v.  156 
V.  Niekerson,  257 
V.  Tunstall,  202 
Poplin  v.  Hawke,  432 
Poppe,  Zarega  v.  120 
Porcher,  Caldwell  v.  508 
Porter,  Bito  v.  203 

Bosley  v.  205 
Brown  v.  516 
Judd  V.  241 
McCuIlough  V.  87 
Miller  v.  191 
Smith  V.  516 
T.  Sawyer,  166 
V.  Taleot,  205 
Post  V.  Bank,  153 
V.  Riley,  240 
Postmaster,  Doe  v.  193 

Locke  V.  193 
V.  Early,  160 
V.  Furber,  206 
V.  Norvell,  206 
Pott,  Margerger  v.  189 

V.  Nathans,  190 
Potter,  Chafin  v.  93,  94 
Evans  v.  502 
Kerr  v.  406 
Payne  v.  503 
Smith  v.  263 
T.  Mo.«es,  404 
V.  "Webb,  432 
Pottinger  v.  Hecksher,  99 
Potts  V.  Bldckwell,  399 
Pounds  V.  Richards.  158 
Pourie  v.  Frasier,  504 
Powell,  Bailey  v.  380 
College  V.  374 
McLemore  v.  192 
V.  Brandon,  335 
V.  Buck,  502 
V.  Glenn,  335 
V.  Henry,  502 
V.  Manufacturing  Co.  66 


Powell   V   Powell,  55 
V.  Smith,  189 
V.  Waters,  15.3,  161 
V.  White,  191 
Pownall,  Angel  v.  501 
Power  V.  Power,  262 
Powers,  State  v.  123 

Webb  v.  322,  330 
Prather  v.  Prather,  490 
Pratt,  Clarke  v.  179 
Fletcher  v.  55 
Harris  v.  99 
Nowell  V.  502 
Shaw  V.  393 
V.  Adams,  162 
V.  Taliaferro,  362 
Pray,  Bassier  v.  162 
Preble  v.  Baldwin,  144 
Prentiss,  Fellowes  v.  192 
Presbrey,  Newcomb  v.  155 
Prescott  V.  Brinsley,  193 
V.  Hubbell,  203 
Presley  v.  Davis,  357 
Pressey,  Shepherd  v.  96 
Preston,  Jewett  v.  106 

Spalding  v.  162     . 
Stewart  v.  156 
Whitcomb  V.  133 
V.  Bacon,  162 
V.  Briggs,  66,  69 
V.  Preston,  390 
Prevost,  Barnes  v.  354 
V.  Gratz,  155 
Price,  Forsythe  v.  72 
French  v.  204 
Golden  v.  240 
Gordon  v.  202 
Lightfoot  v.  207 
Newell  V.  195 
Parnell  v.  192 
Scott  V.  334,  353 
United  States  v.  204 
Williams  v.  180 
V.  Alexander,  404 
V.  Bigham,  487 
V.  Cults,  207 
V.  Tucker,  134 
V.  Watkins,  362 
Pride  v.  Boyce,  191 
Priest,  Howard,  384 
Primrose  v.  Hart,  207 
Printup,  Gardiner  v.  445 
v.  Mitchell,  156 
Prior  V.  White,  105 
Pritchard,  Slidell  v.  162 

V.  Howell,  140 
Pritchett  v.  Jones,  86 
Proctor,  Goodrich  v.  305 
v.  Mather,  204 
v.  Moore,  242 
Proiidfit,  Bleene  v.  501 
Prout,  Lenox  v.  193 
Provost  V.  Wilcox,  106 
Prowder,  Walker  v.  357 
Pruitt  v.  Miller,  503 
Pruyn,  Reed  v.  162 
Public  Adnir.,  Brown  v.  180 
Pue,  Buchanan  v.  427,  445 


Iviii 


INDEX   TO   AMERICAN   CASES   CITED. 


Pugh  V.  Bussell,  242 

V.  Calloway,  52 
TuUe  V.  8tate,  162 
Pullen  V.  Bell.  6(5 
Purmont,  McCrea  v.  189 
Purple  V.  Purple,  160 

V.  Railroad  Co.,  57 
Purse!  V   Ellis,  189 
Pursley  v.  Morrison,  502 
Purtevant  v.  Pendleton,  126 
Puryean,  White  v.  263 
Pusey,  Vilas  v.  192 
Putman  v.  Lewis,  203 
Pyatt,  McClure  v.  339 
Pyland,  Russell  v.  167 
Pyle  V.  Restock,  192 

V.  Clark,  192 

V.  Pennock,  66,  70 

Q. 

Quails,  Rasor  v.  73 
Quarles  v.  Brannon,  161 
Quin,  Bell  v.  157 

V.  Moore,  55 
Quinn  v.  Fuller,  153 

R. 

Rate  V.  Heslip,  173 
Raborg  v.  Hammond,  336 
Rackley  v.  Pearce,  206 
Radcliff,  Livingston  v.  202 
Radcliffe,  Sims  v.  56 

Walter  v.  516 
Ragrew,  Collins  v.  167 
Raguet,  Roll  v.  162 
Railroad  Co.,  Angle  v.  121 

Bittenbender  v.  210 
Butler  V.  67 
Hood  r.  121 
Nutting  V.  121 
Perkins  v.  121 
Purple  V.  57 
Read  v.  125 
Stimpson  v.  317 
Weghtley  v.  339 
White  V.  56 
V.  Clarke,  204 
V.  Cowell,  504 
V.  Hughes,  93 
T.  Navigation  Co.,  123 
V.  Stempson,  317 
V.  Talnian,  179 
V.  Titus,  380 
V.  Wilcox,  200 
Railway  and  Dock  Co.,  Lamothe  v.  501 
Co.  V.  Bastian,  504 
Corporation,  Babcock  v.  504 
Rainey  v.  Link,  140 
Rains,  Yerger  v.  162 
Ralston,  Chase  v.  93 

V.  Waler,  .347 
Rambler,  Spangler  v.  432 
Ramsay.  Scott  v.  182 
Ramsey's  App.,  170 


Ramsy  v.  Edwards,  262 
Rand  v.  Tobie,  162 
Randall  v.  Parrainore,  205 

V.  Thornton,  507 
Randel  v.  Canal  Co.,  262 
Randolph,  Eppes  v.  190 

Hopkirk,  v.  374 
Randon  v.  Toby,  140 
Rank  v.  Rank,  72 
Rankin,  Boyle  v.  52 
Keans  v.  262 
v.  Hoyle,  348 
V.  Woodworth,  56 
Ransom  v.  Pomeroy,  384 
Rapelye  v.  Mackie,  93 
Rapp,  Helve te  v.  173 
Rappalo,  Stoughton  v.  52 
Rasor  v.  Quails,  73 
Ratcliffe,  Murdock  v.  333 

v.  Bank,  156 
Rathbone,  Forsyth  v.  362 
Olcott  V.  203 
V.  Warren,  192 
Raval,  Haskell  v.  371 
Ravasies  v.  Allston,  156 
Rawn,  Humphreys  v.  172 
Rawson  v.  Jones,  56 
Ray,  Clough  v.  87 
Scott  V.  208 
Raymond,  Grant  v.  317 
V.  Sellick,  421 
V.  S((uire,  519 
V.  White,  67 
Rea  V.  Rhodes,  284,  426 
Read,  Collumb  v.  384 
Gile  V.  357 
Miller  v.  156 
Snevlly  v.  138 
Y.  Pruyn, 162 
Railroad  Co.,  125 
Wamsly  v.  432 
Reade  v.  Insurance  Co.,  258 

V.  Livingston,  374 
Reading  v.  Blackwell,  362 
Reany  v.  Culbertson,  502 
Reawick  v.  Williams,  153 
Rector,  Hart  v.  144 

V.  Conway,  440 
Reder,  Denis  v.  192 
Redfield,  Sullivan  v.  317 
Redding,  Chase  v.  423 

Territory  v.  383 
Reddish  v.  Watson,  192 
Reed,  Glass  v.  510 

Hempstead  v.  240 
Lassell  V.  67,  71 
Miller  v.  389 
Shaw  V.  162 
Toby  V.  73 
V.  Beazley,  376 
V.  Boardman,  205 
V.  Buckleu,  353 
V.  Crocker,  349 
V.  Cutter,  312,  316 
V.  Evans,  144 
V.  Johnson,  398 
V.  Murphy,  404 
V.  Shaw.  394 


INDEX   TO   AMERICAN    CASES    CITED.. 


lix 


Reed  v.  Shepardson,  398 

V.  The  Hull  of  a  new  Brig,  82 
V.  Upton,  203 
Reel,  Hudson  v.  156 
Rees,  Boynton  v.  127 

V.  Overbaugh,  156 
Reese  v.  Bradford,  399 
Reesor,  Allen  v.  182 
Reeve,  Buckingham  v.  334 
Hudson  V.  284,  426 
Reeves,  Ashley  v.  508 
City  V.  389 
Haylebaker  v.  140 
McPherson  v.  140 
Solibellas  v.  156 
v.  Baldwin,  501 
V.  Goff,  263 
Rieehart,  Castator  v.  376 
Reichenbach,  Dormick  v.  433 
Reid,  Duncan  V.  192 
V.  Lamar,  486 
V.  Morrison,  153 
Reilly,  Vanhouten  v.  55,  56 
Reinhart  v.  Keith,  200 
Reinheimer  v.  Hemingway,  52,  399 
Reiser  v.  Saving  Fund,  304 
Reister,  Thomas  v.  440 
Reist  V.  Heibbienner,  125 
Reitzel,  Eberman  v.  162 
Remsen,  McClelland  v.  105 
Rench,  Burits  v.  504 
Renfrew,  Caldwell  v.  423 
Rentfrow,  Scranton  v.  406 
Renwick,  Campbell  v.  127 
Reppert  v.  Coloin,  408 
Resor  v.  Resor,  375,  485 
Rewalt  V.  Ulrich,  335 
Rew  V.  Barber,  510 
Reyburn,  Irons  v.  504 
Reynolds,  Bank  v.  192 

Keating  v.  334 
Lillard  v.  426,  445 
Sayre  v.  155 
Scarborough  v.  503 
Smelie  v.  487 
State  v.  189 
V.  Cleveland,  395 
V.  Commissioners,  50,  333 
V.  Johnson,  140 
v.  Lansford,  374 
V.  McFarlane,  206 
V.  Reynolds,  263 
V.  Shutter,  67 
V.  Waher,  407 
V.  AVard,  192 
V.  Yarborough,  138 
Rhoads  v.  Frederick,  192 
Rhodes,  Renny  v.  502 
Cassily  v.  72 
Kitteridge  v.  67 
Rea  v.  284,  426 
Rhykendall,  Barickman  v.  143 
Rice,  Beauton  v.  207 
Deaver  v.  72 
Everley  v.  191 
Fones  v.  374 
Gile  v.  207 
IJams  V.  178 


Rice,  Middleton  v.  470 
Robinson  v.  510 
V.  Austin,  404 
V.  Barnard,  384,  399 
V.  Bixler,  362 
V.  Doniphan,  408 
V.  Gist,  167 
V.  Welling,  161 
V.  Wilder,  138 
Rich,  Harrington  v.  442 
Richards,  Graysons  v.  157 
Jackson  v.  153 
Pounds  V.  158 
Russel  V.  67 
Wilter  V.  398 
V.  Brockenborough,  262 
V.  Commonwealth,  192 
V.  Freesler,  161 
V.  McMillan,  172 
Richardson,  Borney  v.  426 
Blood  V.  67 
Cochran  v.  503 
Goodwin  v.  398 
Huff  V.  140 
McClure  v.  504 
Morgan  v.  408 
Robins  v.  153 
V.  Adams,  422 
V.  Bank,  190 
V.  Copeland,  66 
V.  Insurance  Company,  162 
T.  Jones,  380 
Richardville  v.  Cummins,  55 
Richbourg,  Kirk  v.  1 78 
Richey,  Stewart  v.  125 
Richmond  v.  Roberts,  162,  172 
Ricketts,  Butler  v.  374 

V.  Livingston,  448 
Ricks  V.  Dillahunty,  506 
Riddle,  King  v.  242 
Towns  V.  193 
Townsend  v.  193,  389 
V.  Varnum,  94 
Riddell,  Babbitt  v.  339 
Ridenhour,  Hawkins  v.  179 
Ridgway,  Lippincott  v.  347 
V.  Bowman,  99 
V.  English,  138 
V.  Underwood,  374 
Ridgway's  Appeal,  385 
Ridley  v.  Ridley,  200 
Rigden  v.  Martin,  202 
Riggens,  Brown  v.  192 
V.  Brown,  192 
Riker,  Brown  v.  167 

Case  V.  162 
Riley,  Post  v.  240 

Waters  v.  390 
V.  Riley,  375 
Rine,  Wilson  v.  426 
Rinehart  v.  Harrison,  362 
Rinker,  Merrill  v.  398 
Ripley  v.  Wighteman,  339 
Rising  v.  Patterson,  203 

V.  Stannard,  72 
Risley  v.  Buchanan,   203 
Rison  v.  Berry,  262 
Rittenhouse  v.  Levering,  190 


Ix 


INDEX    TO   AMERICAN   CASES   CITED, 


Ritter,  Courcier  v.  504 
Ritter's  App.,  440 
Rivers  v.  Crugett,  510 
V.  Thayer,  374 
Rix,  Savage  v.  503 
Roach  V.  Perrv,  404 
Robb,  Taliaferro  v.  442 
Robbing,  Commonwealth  v.  167 
Henshaw  v.  508 
Sturgess  v.  206 
V.  Abrahams,  485 
V.  Cooper,  401 
Robert,  Beebe  v.  509 
V.  Carter,  55 
V.  Garnie,  206 
Roberts,  Anderson  v.  375 
Carnult  v.  143 
Gallagher  v.  203 
Richmond  v.  162,  172 
Sherman  v.  189 
Van  Rensselaer  v.  206 
Teaton  v.  354 
Yundt  V.  159 
V.  Bank,  52,  66 
V.  Brinker,  353 
V.  Garen,   138 
Robertshaw,  Ins.  Co.  v.  252 
Robertson,  Hutcher  v.  373 
Stein  V.  404 
V.  Branch,  204 
V.  Demoss,  180 
V.  Ketchura,  501 
V.  Smith,  204 
Robeson  v.  Whitesides,  132 
Robicheau,  Pitman  v.  399 
Robins,  Shaw  v.  J40 

V.  Richardson,  153 
Robinson,  Bennett  v.  470 
Cathcart  v.  375 
Coats  V.  487 
Cox  V.  503 
Ellis  V.  160 
Forrest  v.  487 
Grady  v.  406 
Hugus  V.  93 
Hunt  V.  162 
Klock  V.  178 
Lane  v.  98 
Lillard  v.  346 
McLarren  v.  393 
Middleton  v.  125 
Tabor  v.  66 
Taylor  v.  179 
Torry  v.  126 
Tyson  v.  262 
V.  Cooper,  510 
V.  Doolittle,  206 
V.  Green,  406 
V.  Gregory,  408 
V.  Marshall,   138 
V.  McDonald,  125 
V.  Rice,   510 
V.  Sherman,  191 
T.  Taylor,  408 
V.  Thompson,  383 
Robson  V.  Jones,  374 
Roby  V.  West,  159 
Roche,  Topham  v.  504 


Roche,  Boyle  v.  78 
Rochester,  Hammer  v.  207 

V.  Taylor,  153 
Rockafellow  v.  Baker,  507 
Rodgers  v.  Niles,  509 

V.  Rodgers,  335 
Rodman,  Baxter  v.  404 
Rodrigues,  Habersham  v.  510 
Roderiguez  v.  Hefferman,  399,  502 
Roemer  V.  Dening,  172 
Roger,  Jarvis  v.  126 
Rogers,  Clark  v.  519 

Dunham  v.  405 
Finch  v.  284,  426 
Gage  v.  72 
Givens  v.  166 
Goodridge  v.  127 
Kneeland  v.  159 
Livingston  v.  138 
Smith  v.  55 
Wilkes  v.  357 
V.  Ackerman,  506 
V.  Bachelor,  397 
v.  Benson,  370 
V.  Hemstead,  394 
V.  Hosack,  393 
V.  Kichline,  395 
V.  Ludlow,  487 
V.  Rogers,  348,  376,  432 
V.  Smith,  486 
V.  Thomas,  98 
Roget  V.  Merritt,  202 
Rohan  v.  Hanson,  207 
Roland  v.  Grundy,  498 
Role  V.  Raguet,  162 
Rollins,  Bank  v.  194 
Romeyn,  Draper  v.  194 
Roome  v.  Phillips,  354 
Roosa,  Bank  v.  60,  334 
Roosevelt,  Livingston  v.  407 
V.  Cebra,  240 
V.  Mark,  172 
V.  McDowell,  383 
Root,  Camp  v.  262 
Roscoe,  Treadwell  v.  398 
Rose,  McTaggart  v.  106 
V.  Beattie,  508 
V.  Hall,  202 
V.  Truax,  159 
Roseberry,  Fish  v.  509 
Rosenberger,  Mulvany  v.  511 
Rosenda,  Clark  v.  240 
Rosevelt,  Bank  v.  206 
Ross,  Hale  v.  242 
Harris  v.  162 
Hook  V.  123 
Walter  V.  119 
Walton  V.  99 
V.  Bedell,  153 
V.  Davis,  285,  427 
V.  Drake,  362 
v.  Drinker,  404 
V.  McLauchlan,  206 
V.  Sadybeer,  164 
Ross's  Appeal,  67 
Rossian  v.  Call,  206 
Rossiter  v.  Rossiter,  501 
Rossman,  Niver  v.  133 


INDEX   TO   AMERICAN   CASES   CITED. 


Ixi 


'Rothwell  V.  Dewees,  408 

Rough,  Todd  v.  262 

Koundtree  v.  Holloway,  138 
V.  AVeaver,  138 

Roundy  v.  Hunt,  172 

Rouse  V.  Moore,  504 

Rousmanier,  Hunt  v.  198 

Rousseau,  Wilson  v.  314,  317 

Row,  Collins  V.  144 

Rowe,  Wason  v.  507 

Rowland,  Bell  v.  139 

Brisht  V.  133 
V.  Evans,  433 
V.  Stevenson,  242 

Rowley  v.  Bigelow,  100,  102 
V.  Stoddard,  392 

Rowman,  Pennington  v.  262 

Royall  V.  Eppes,  336 

V.  McKenzie,  370 

Kuekman  v.  Outewater,  57,  71 

Ruddell  V.  Ambler,  161 

Rudd,  Schoolfield  v.  190 

Rudy  V.  Wolfe,  189 

Rue,  Hibbs  v.  192 

Ruff  V.  Rutherford,  348 

Rugg  V.  Barnes,  105 

Ruggles,  Nichols  v.  162,  319 
V.  Keeler,  160 
V.  Patten,  394 

Rumph,  Allen  v.  375 

Rundell,  Taylor  v.  140 

Rundle  v.  Murgatroyd,  374 

Rundlett  v.  Jordan,  200 
V.  Small,  208 

Runk,  Field  v.  144 

Runnels,  Harris  v.  162 

Ruse  y.  Insurance  Co.,  252 

Rush,  Dows  v.  119 
V.  Gott,  167 

Russ,  Hale  V.  155 

Schuyler  v.  511 

Russel,  Gray  v.  330 

Russell,  Blanchard  v.  242 
The  People  v.  193 
United  States  v.  155 
Weaver  v.  200 
Wheeler  v.  158,  162 
V.  Fillmore,  55 
V.  Lytle,  203 
T.  Pyland,  167 
V.  Richards,  67 
V.  Slade,  143 

Rustenbaden,  Farley  v.  140 

Rutherford,  Iron  Co.  v.  57 
Leblen  v.  207 
Ruff  V.  348 

Rutledge  v.  Smith,  365 

Ryan  v.  Bull,  375 

V.  Goodwin,  317 

Ryberg  v.  Snell,  119 


S. 

Sackett,  Cole  v.  203 

V.  Androse,  219 


Sacramento,  Heslef  v.  138 
Sadler  v.  Houston,  487 
Sadybeer,  Ross  v.  164 
Saffarans,  Moreau  v.  384 
Sage,  Stocking  V.  138 
V.  Chollar,  397 
Saggs  V.  Sapp,  426 
Sahlman  v.  iVlills,  93 
Sale  V.  Dishman,  383,  407 
Salisbury  v.  Scott,  263 

V.  Stainer,  508 
Sallade  v.  James,  72 
Salmon,  Clagett  v.  392 
V.  Bennett,  375 
T,  Clagett,  190 
V.  Davis,  381 
Salmond,  Sargent  v.  190 
Saltmarsh,  Gower  v.  133 
V.  Bank,  161 
V.  Smith,  198 
Saltur  V.  Saltur,  139 
Saltus  V.  Everett,- 498 
Samaritan  Society,  Hoover  v.  485 
Sammerell  v.  Elder,  119 
Sammons,  Williamson  v.  510 
Sample  v.  Lipscomb,  442 
Sampson  v.  Burnside,  144 
Samuels  v.  Gorham,  93 
Samuel,  AVeber  v.  211,  370 
Sanborn,  Hoe  v.  508 
Sanders,  Fishborne  v.  178 
Helme  v.  125 
V.  Bank,  202 
V.  Logan,  317 
V.  Pepoon,  105 
v.  Watson,  190 
Sandford,  Botsford  v.  161 
Lambert  v.  153 
Peters  v.  204 
V.  Handy,  500 
V.  Lebanon,  490 
Sandiford,  Tayloe  v.  132,  206 
Sands  v.  Gelston,  139 
V.  Pfeiffer,  66 
V.  Taylor,  507 
Sanford,  Gregg  v.  106 
Sanger,  Herring  v.  203 
Sappington,  Burkhart  v.  179 
Sapp,  Suggs  V.  285,  426 
Sarer,  Gary  v.  133 
Sargent  v.  Meicalf,  94 

V.  Salmond,  190 
Sarmiento,  Green  v.  204 
Satchwell,  Conner  v.  426 
Satterlee,  Douglass  v.  441 
Satterwhite  v.  Carson,  178 
Saunders,  Erwin  v.  139 

Kavanagh  v.  160 
Ogden  V.  240 
AVard  v.  354 
Savage,  Leavitt  v.  192 
Wood  V.  374 
V.  Rix,  500 
Saving  Bank  v.  Ford,  304 
Saving  Fund,  Bank  v.  503 
Reiser  v.  304 
Savings  Institution,  Colegate  v.  191 


Ixii 


INDEX    TO   AMERICAN   CASES   CITED. 


Savings  Bank,  Savings  Society  v.  408 

V.  Wilcox,  303 
Savings  Society  v.  Savings  Bank,  408 
Savoye  v.  Marsh,  242 
Sawyer,  Miller,  v.   196   • 
Overton  v.  424 
Porter  v.  166 
Tappan  v.  206 
V.  Bradford,  a94 
V.  Joslin,  98 
V.  J\'ichols,  94 
V.  Mclntire,  134 
Sawin  V.  Guild,  318 
Sayles  v.  Sayles,  162 
Sayre,  Doniinick  v.  346 

Uall  V.  180 

V.  Austin,  178 

v.  Lucas,  56 

V.  Kevnolds,  155 
Sayward,  Do\v  v.  398 
Scantling,  Titus  v.  262 
Scarborough  v.  Reynolds,  503 
Schaettle,  Benedict  v.  98 
Schatzell  v.  Bolton,  398 
Schebel,  Smith  v.  57 
Scheuierhorn  v.  Loines,  118,  203 
Schenck,  Howell  v.  72 
Schepler,  Knox  v.  383,  398 
Schimmelpenich  v.  Bayard,  501 
Schintzel's  Appeal,  190 
Schmidt,  Thompson  v.  426 
Schnell  v.  Schroder,  206 
Schofield,  Nichols  v.  200 

V.  Cox,  200 
Scbollenberger  v.  Keldonridge,  393 
Scholl  V.  Scboll,  445 
School  District  v.  Lord,  53 
Schoolfield  v.  Rudd,  190 
Schooler,  Black  v.  205 
Schriver  v.  Cobeau,  354 
Schroder,  Scbnell  v.  206 
Schuberth,  Bull  v.  405 
Schumacher  v.  Eby,  100 
Schuyler,  Coutant  v.  422 

V.  Russ,  511 
Sconelle  V.  Canfield,  160 
Sconton  v.  Ei^ord,  139 
Scotien  v.  Brown,  143 
Scott,  Barlow  v.  123 

Chapline  v.  207 

Delano  v.  316 

Dorrance  v.  486 

Ender  v.  507 

Salisbury  v.  263 

V.  Cleveland,  207 

V.  Fisher,  206 

T.  Hix,  510 

T.  Hull,  192 

v.  McGrath,  502 

T.  Price,  334,  353 

V.  Ramsay,  182 

T.  Ray,  208 

V.  Wells,  94 
Scoville,  Alger  v.  144 
Scovell,  Wetraore  v.  330 
Scranton  v.  Rentfrow,  406 
Screws,  Arrington  v.  200 


Scribner  v.  Fisher,  242' 
Scruggs,  DegrafFenreid  v.  66 
Scrugham  v.  Carter,   397 
Scudder  v.  Johnson,   262 

V.  AVorster,  93 
Scull  V.  Wallace,  516 
Seal,  Bailey  v.  242 

Day  V.  204 
Sealy  v.  Laurens,  354 
Seamen  v.  Haskins,  203 

V.  Waddington,  162 
Searcy,  Johnson  v.  193 
Sears,  Bank  v.  155 

Commonwealth  v.  490 
Ilarkness  v.  70 
Pollard  V.  440 
V.  Conover,  55 
Seaver  v.  Dingley,  53 
Sebley  v.  McAllister,  193 
Secomb  v.  Nutt,  99 
Secor  V.  Keler,  395 
Secrest,  Beckham  v.   378 

Evans  v.  475 
Seely,  Bonney  v.  189 
Seelye,  Diekerson  v.  120 
Sego,  Weeks  v.  486 
Seiberfs  Appeal,  354 
Seiple  V.  Irwin,  503 
Seixas  v.  Woods,  507 
Seldonridge,  Scbollenberger  v.  393 
Selleck  V.  Turnpike  Company,  206 
Sellers  v.  Jones,  204 
Sellick,  Raymond  v.  421 
Seltzer  v.  Coleman,  203 
■Semmes  v.  Magruder,  440 
Seward,  Giddings  v.  446 
Seneca,  Tioga  v.  138 
Sessions  v.  Moseley,  421 
Sewall,  Moody  v.  380 

V.  Sparrow,  394 
Sewell,  Weatherhead  v.  433 

V.  Eaton,  94 
Sexton,  Gainey  v.  180 

Wheaton  v.  374 
V.  Fleet,  57 
Seybert,  O'Donnell  v.   55 
Seymour,  McCormiek  v.  317 
Stone  V.   206 
V.  Butler,  393 
V.  Marbin,  161 
V.  Minturn,  201 
V.  Van  Slvck,  207 
V.  Wycko"ff,  504 
Shackleford  v.  Smith,  406 
Wilson  V.  607 
Shaddon  v.  Knott,  53 
Shafer,  Marienthal  v.  54 
Shaffer's  App.,  442 
Shafner  v.  Shafner,  72 
Shallenberger  v.  Ashworth,  364 
Shannon,  Bridge  Company  v.   396 
Shapleigh  v.  Wentworth,  105 
Sharick  v   Iluber,  126 
Sharp,  Farnsworth  v.  156 
Kelson  v.  172 
V.  Lipsey,  262 
V.  Tease,  162 


INDEX   TO   AMERICAN    CASES    CITED. 


Ixiii 


Sharp,  Ware  v.  486 
Shattuck  V.  Steadman,  353 

V.  Woods,  162. 
Shaw,  Caton  v.  161 
Cloasen  v.  160 
Kinder  v.  502 
King  V.  ]72 
Reed  V.  394 
Smith  V.  207 
V.  Ayrs,  263 
V.  Cooper,  316 
T.  Gorkin,  204 
T.  Knowles,  383 
\.  McBride,  446 
V.  Pearce,  263 
V.  Pratt,  393 
T.  Reed,  162 
V.  Robins,  240 
V.  The  Church,  205 
Shawhan,  Jones  v.  205 
Shead  v.  Barrinton,  395 
Shearer,  Gelty  v.  155 
Morey  v.  172 
V.  Mooers,  262 
Shearick  v.  Huber,  52 
Shed,  Dawes  v.  139 

V.  Pierce,  394 
Shedd  V.  Bank,  408 
Sheehy  v.  Mandeville,  202,  389,  396 
Sheetz  v.  Hobensack,  200 
Sheftal  V.  Clay,  518 
Shenan  v.  Hampton,  193 
Shelden,  Hoyt  v.  242 
Sheldon,  Bush  v.  432 
Shell  V.  Heywood,  89 
Shelton  t.  Deering,  154 
V.  Homer,  162 
V.  Marshall,  159 
Shenck  v.  Wright,  162 
V.  Mingle,  162 
Shenk  v.  Mingle,  138 
Shepard,  Cannaday  v.  55 
V.  Ogden,  189 
V.  Philbrick,  72 
V.  Spaulding,  66 
Shepardson,  Reed  v.  398 
Shepherd,  Shropshire  v.  395,  404 
V.  Pressey,  96 
v.  Ward,  396 
Shepley  v.  Little,  501 
Sheppard,  Mitchell  v.  123 
Watt  V.  132 
V.  Stiles,  56 
Sherburne  v.  Jones,  72 
Sherill  v.  Hopkins,  161 
Sherman,  Hyland  v.  509 
Robinson  v.  191 
Smith  V.  128 
Walker  v.  66,  67 
V.  Boyce,  162 
V.  Company,  510 
V.  Roberts,  189 
Shermer  v.  Shermer,  347 
Sherrod  v.  Bennett,  139 
Shields,  Cowan  v.  519 

V.  Penn,  262 
Shinn  v.  Holmes,  432  I 


Shipley,  Worthington  v.  378 
Shippen  v.  Clapp,  156 
Shipper,  Decan  v.  119 
Shippey  v.  Henderson,  139 
Shirley  v.  Fellows,  153 

V.  Shirley,  143,  376 
V.  AVhitehead,  421 
Shockey,  Duffy  v.  133,  164 
Shock  V.  Miller,  393 
Shoolbred,  Timrod  v.  508 
Shope,  Etiner  v.  263 
Shore,  Uauser  v.  364 
Shorter,  Jones  v.  138 
Shotwell  V.  Miller,  394 
Shawalter,  Houts  v.  72 
Shreeve  v.  Brereton,  132 
Shriver  v.  Stevens,  503 
Shropshire  v.  Shepherd,  395,  406 
Shumway  v.  Collins,  339 
Shunk  V.  Endress,  375 
Shute  V.  Taylor,  132 
Shutter,  Reynolds  v.  67 
Shutz,  Heffelfinger  v.  155 
Sicard  v.  Whale,  242 
Sidlinger,  Bonneman  v.  422 
Siegel  v.  Chidsey,  210 
Sigerson,  Pomeroy  v.  405 
Sigfried  v.  Swan,  156 
Sigler  V.  Bank,  396 
Sigourney  v.  Mann,  384 
Silliman,  Batten  v.  318 
Silsbee,  Melius  v.  316 

V.  Foote,  312,  318 
Silter  V.  Walker,  398 
Sim,  Burr  v.  362 
Simmons,  Lattimore  v.  126 
Simms  v.  Kileian,  144 
Simons  v.  McElwain,  376 

V.  Steele,  160 
Singizer's  Appeal,  211 
Simpson,  Darling  v.  380 

United  States  t.  193 

Waters  v.  138,  192 

Wilson  V.  314 

V.  Feltz,  403 

V.  Fullenwidder,  161 

V.  Graves,  374 

V.  Simpson,,  376 

V.  Wiggin,  508 

V.  Young,  390 
Sims,  Creath  v.  194 
V.  Harris,  380 
V.  Radcliffe,  56 
V.  Stilwell,  442 
V.  Tyre,  380 
V.  Walker,  422 
Singleton,  Pickney  \^.  178 
V.  Cotton,  421 
V.  Kennedy,  509 
V.  Singleton,  73,  432 
Sinkler,  Boone  v.  354 
Foster  V.  518 
Sinnickson,  Sterling  v.  162 
Sisk  v.  Evans,  106 
Siter  V.  McClanahan,  362 
Skegg,  Hawkins  v.  72 
Skill  V.  Solace,  105 
Skilling  V.  Jackson,  372 


Ixiv 


INDEX   TO  AMERICAN   CASES   CITED. 


Skinner,  Clark  v.  52 

Strong  V.  485 
AVarren  v.  202 
Whittle  V.  193 
V.  Gimn,  503 
V.  Henderson,  159 
V.  Somers,  56 
V.  Stouse,  53 
V.  The  Sloop  Hope,  117 
Sipkwith,  AValker  v.  501 
Slade,  Russell  v.  143 
Slate  V.  Black,  167 
Slatter  v.  Carrol,  383 

V.  Tiernan,  200 
Slaughter,  Collier  v.  471 
Slaver  v.  White,  398 
Slaymaker,  Eisenhart  v.  380 

V.  Gundacker,  205 
Slayton,  Whitney  v.  164 
Sleeper,  Elliott  v.  203 
Dickey  v.  262 
Sleight,  Davenport  v.  157 
Sleighter  v.  Harrington,  442 
Sliddell  V.  Pritchard,  162 
Slocumb  V.  Watkins,  155 
Sloeum,  Fleming  v.  508 
Sloo  V.  Lea,  21)4 
Smalley  v.  Edey,  204 
Small  V.  Jones,  20^ 
V.  Small,  432 
Rundlett  v.  208 
Smallwood  v.  Smallwood,  140 
Smeed  v.  White.  191 
Smelie  v.  Reynolds,  487 
Smethurst,  Harwood  v.  53 
Smith,  Applegate  v.  162 

Atkins  V.  90 

Bank  v.  157,  240 

Barlow  v.  138 

Barnawell  v.  440,  516 

Bearden  v.  133 

Bond  V.  516 

Booth  V.  202 

Bradbury  v.  398 

Brewer  v.  90,  94 

Burd  V.  210 

Caldwell  v.  511 

Christian  v.  160 

Clay  V.  242 

Comstock  V.  138,  204 

Cope  V.  193 

Crawford  v.  93 

Denning  v.  501 

Dickinson  v.  182 

Elliott  V.  353 

Ewing  V.  486 

Fay  V.  155 

Follett  V.  203 

Gardiner  v.  397 

Gilead  v.  203 

Glenn  v.  202 

Goodnow  V.  394 

Greely  v.  258 

Guilford  v.  99 

Harris  v.  94 

Hatch  V.  114 

Hodgman  v.  404 


Smith,  Hoffman  v.  153 
Homes  v.  204 
Iloyle  V.  486 
Hunt  V.  371 
Ingram  v.  334 
Joslyn  V.  192 
Kelly  V.  602 
Leigh  V.  516,  485 
Lewis  V.  172 
Lines  v.  510 
Logue  V.  57 
Mitchell  V.  162 
Monell  V.  172 
Moore  v.  404 
Norment  v.  126 
Piper  V.  384 
Plummer  v.  162 
Powell  V.  189 
Robertson  v.  204 
Rogers  v.  486 
Rutledge  v.  365 
Saltmarsh  v.  198 
Shackleford  v.  406 
Spilman  v.  194 
Stebbins  v.  161 
Stevens  v.  509 
Sylvester  v.  395,  406 
Tapley  v.  67 
Tazewell  v.  362 
Townsend  v.  178 
Troup  V.  126 
Ventress  v.  498 
Vroom  V.  159 
West  V.  284 
White  V.  389 
Wiseman  v.  354 
Wyman  v.  144 
V.  Acker,  105 
V.  Applegate,  147 
V.  Atkins,  83 
V.  Barker,  397 
V.  Bartholomew,  202 
V.  Barstow,  159 
V.  Black,  204,  396 
V.  Bonsall,  432 
V.  Brooke,  206 
V.  Brown,  202 
V.  Craig,  93 
V.  Crooker,  154 
V.  Day,  191 
V.  Downey,  421 
V.  Dunham,  156 
V.  Ely,  316 
V.  Fagan,  390 
V.  Gardner,  242 
V.  Gibson,  503 
V.  Godfrey,  160 
V.  Grove,  125 
V.  Kiteridge,  421 
V.  Lloyd,  206 
V.  Long,  477 
V.  Ludlow,  390 
T.  Mallory,  180 
V.  Marshall,  448 
V.  Martin,  390 
V.  McCrary,  362 
V.  Mead,  161,  241 


INDEX   TO   AMERICAN   CASES   CITED. 


Ixv 


Smith   V.  Miller,  510 
V.  Moore,  105 
V.  Mudgett,  138 
V.  Parsons,  240 
V.  Perry,  405 
V.  Porter,  516 
T.  Potter,  263 
V.  Rogers,  55 
T.  Schebel,  57 
V.  Shaw,  207 
V.  Sherman,  128 

V.  Smith,  94,  133,  162,  242,  373,  446 
V.  Starr,  364 
V.  State  180 
V.  Steele,  432 
V.  Stern,  378 
V.  Stoddard,  161 
V.  Tarlton,  384 
V.  Towne,  426 
V.  Turcher,  105 
V.  United  States,  160 
V.  Ware,  138 
V.  Williams,  510 
Ventress  v.  498 
Vroom  V.  159 
West  V.  284 
Wiseman  v.  354 
Wyman  v.  144 
Smith's  Appeal,  181,  335 
Smithwick  v.  Ward,  394 
Smock  V.  Taylor,  56 
Smoot  V.  Wathen,  380 
Sneed  r.  Weister,  380 
Snell,  Dunn  v.  55,  57,  519 
Ryberg  v.  119 
V.  Moses,  507 
Snevily  v.  Read,  138 
Snow,  Thompson  v.  404 
Weed  V.  203 
V.  Chandler,  394 
V.  Perry,  502 
Snowhill,  Hall  v.  105 
Snyder  County  Appeal,  181 
Moorhead  v.  73 
V.  Christ,  375 
V.  Croy,  125 
T.  May,  408 
V.  Vaux,  52,  53 
V.  Webb,  374 
V.  Wilt,  153 
Society  v.  Bank,  501 
Wilson  V.  158 
Sockwell,  Brown  v.  357 
Solace,  Skiff  v.  105 
Sollibellas  v.  Reeves,  156 
Solomon  v.  Solomon,  404 
Solomons,  McKinstry  v.  262 
Somers,  Skinner  v.  56 
Sommers  v.  Wild,  55 
Sommerville,  McCullough  v.  407 
Sofer,  Wilson  v.  383 
Sorelle  v.  Sorelle,  448 
Soule,  Norton  v.  190 

V.  Dougherty,  503 
Soulter,  Williams  v.  404 
Southard  v.  Lewis,  383 
Southwood,  Stanley  v.  263 
SoUthworth  v.  Packard,  381 


Spafford,  Bradley  v.  190 

Williams  v.  509 
Spalding  v.  Preston,  162 
Spangler  v.  Rambler,  432 
Spann  v.  Blatzell,  202 
Sparhawk  v.  Buell,  357 
Sparks  v.  Bank,  66 
Sparrow,  Sewall  v.  394 
Spaulding,  Shepherd  v.  66 
Speake  v.  United  States,  155 
Spear,  Duncan  v.  78 

Hannum  v.  365 
Kitchen  v.  99 
Still  V.  345 
V.  Atkinson,  203 
Spears,  Wells  v.  510 
Speck  V.  Commonwealth,  205 
Speelman  v.  Culbertson,  440 
Speer  v.  Bidwell,  263 
Spencer,  Okie  v.  204 
Steele  v.  154 
V.  Blaisdell,  300 
V.  Tilden,  133 
Sperry's  Estate,  180 
Spier.  Cunningham  v.  507 
Spilman  v.  Smith,  194 
Spinger,  Mytinger  v.  380 
Spires  v.  Hamot,  207 
Spivey  V.  Farmer,  125 
Sponsler,  Wetzel  v.  193 
Sprague,  Blanchard  v.  316 
McAllester  v.  392 
Stone  V.  316 
V.  Gillett,  504 
Sprigg  V.  Braman,  190 
Spring  V.  Bank,  192 
Sproul,  Mitchell  v.  502 
Spruell  V.  Moore,  354 
Spruneberger  v.  Dentlee,  202 
Squire,  Raymond  v.  519 
Squires  v.  Old,  426 

St.  Andrew's  Church  v.  Tompkins,  172 
St.  John,  Bank  v.  172 
Beers  v.  66 
Hammon  v.  383 
Van  Sautvoord  r.  121 
V.  Insurance  Co.,  253 
St.  Peter's  Church,  Newcomb  v.  445 
Stackhouse,  Paul  v.  139 
Staekpoole,  Baker  v.  207 
Stackpole,  Farrar  v.  66 
Stafford  v.  Bacon,  139 
Stagg  V.  Beekman,  448 
Stainer,  Salisbury  v.  508 
Stanbury,  Taggart  v.  503 
Standifer,  Ewing  v.  335 
Slb,nford,  Edgell  v.  161 
Stanley,  Horton  v.  262 
V.  Gaylord,  127 
V.  Kean,  433 
V.  Nelson,  159 
V.  Southwood,  263 
Stannard,  Rising  v.  72 
Stanton,  Burnett  v.  508 
Williams  v.  202 
V.  Eager,  98 
V.  Stanton,  139 
Stark,  Insurance  Co.  v.  503 


£ 


Ixvi 


INDEX   TO   AMERICAN   CASES   CITED. 


Stark.  Mercer  r.  138 
Thayer  v.  105 
V.  Ward,  378 
Starks,  Tucker  v.  433 
Starnes  v.  Erwin,  506 
Starr,  Smith  v.  364 
Starret  v.  Wynn,  487 
Starrett  v.  Barber,  206 
State,  Cornan  v.  102 
County  V.  123 
Craig  T.  162 
Graham  v.  182 
Kintner  v.  178 
Merryman  v.  191 
Morhind  v.  193 
Parsons  v.  166 
Pulse  V.  162 
Smith  V.  180 
Tarkington  v.  489 
V.  Bank,  180 
T.  Delafield,  500 
V.  D'Oench,  106 
T.  Elliott,  66 
V.  Gaillard,  508 
T.  Johnson,  180 
V.  Mann,  353 
T.  Morgan,  182 
T.  Paine,  489 
V.  Powers,  123 
V.  Reynolds,  189 
V.  Smith,  491 
V.  Stigall,  489 
V.  Stout,  182 
V.  Taylor,  160 
V.  Winn,   182 
Statesworth  v.  Statesworth,  348 
StaufFer,  Commonwealth  v.  470 

Doner  v. 397 
Staver,  Ferguson  t.  181 
Stayton,  Fisher  v.  242 
Steamboat,  Hayes  v.  191 

T.  Hammond,  203 
Stearns,  Fullam  v.  66 
Gibson  V.  161 
V.  Barrett,  164 
V.  Haven,  406 
Stebbins,  Gram  v.  279 
Palmer  v.  164 
V.  Leowolf,  279 
V.  Smith,  161 
Steckel  v.  Steckel,  153 
Stedman,  Shattuck  v.  353 
Steele,  Currie  v.  425 
Simons  v.  160 
Smith  V.  432 
Wright  V.  140 
V.  Curie,  162 
V.  Mealing,  196 
T.  Spencer,  154 
v.  Taylor,  207. 
Steelwagon  v.  Jeffries,  93 
Steere,  Phetteplace  t.  138 
Stembridge,  Hunter  v.  345 
Stein,  Miller  v.  192 

Robertson,  404 
Steiner,  Davis  v.  140 
Steinmetz,  Chapman  v.  204 
Steinmyer,  Pierson  v.  405 


Steinruck,  Kater  v.  ]25 
Stephens  v.  Cady,  330 

V.  Graham,  155 

V.  Harris,  186 
V.  Thompson,  202 
Stephenson,  Dougherty  v.  440 
Nelson  v."l20 
Ware  v.  144 
Sterling,  Dundas  v.  192 

Irwin  V.  126 

V.  Sinniekson,  162 
Stern,  Smith  v.  378 
Sterrett,  Brewster  v.  384 
Sterry  v.  Arden,  375 
Stettinus,  McConnell  v.  204 
Steven,  Lindsey  v.  206 
Stevens,  Baum  v.  507 

Beverley  v.  262 

Burton  V.  140 

Gibson  v.  398 

Shriver  v.  603 

v.  Gladding,  331 

V.  Ewe,  93 

V.  Fisher,  160 

v.  Martin,  ]56 

T.  Smith,  509 

V.  Stevens,  519 
Stevenson,  Rowland  v.  242 

V.  Hoy,  501 
Stewart,  Bailey  v.  262 

Buddington  r.  82 

Depuy  V.  139 

Isley  V.  506 

Jordan  v.  156 

Miller  V.  193 

Nichols  V.  161 

Thompson  v.  501 

Walls  V.  446 

V.  Conner,  441 

V.  Donnelly,  502 

T.  Doughty,  72 

V.  Dougherty,  507 

v.  Eden,  138 

V.  Preston,  156 

V.  Richey,  125 
Stewart's  Appeal,  205 
Stickel  V.  Stickel,  196 
Stickney  v.  Davis,  445 
Stigall,  State  v.  489 
Stileheimer,  Little  v.  504 
Stileman,  Caldwell  v.  383 
Stile,  Bowers  v.  393 
Stiles,  Shepherd  v.  56 
V.  Fleming,  376 
Stillev.  Traverse,  119 
Stilley  V.  Folger,  374 
Still  V.  Spear,  345 
Stillwell  V.  Doughty,  338 
Stilwell,  Sims  v.  442 

Railroad  Company  v.  317 
Stimpson  v.  Railroad  Company,  317 
Stinson,  Gass  v.  193,  206 
Stoallings,  Baker  v.  405 
Stockett,  Jones  v.  357,  370 

V.  Holliday,  374 
Stocking  V.  Sage,  138 
Stockton,  Church  v.  365 

Wright  v.  193 


INDEX   TO   AMERICAN   CASES   CITED. 


Ixvii 


Stockwell  V.  Marks,  66 
Stoddard,  Rowley  v.  392 
Smith  V.  161 
V.  Mcllvain,  503 
Stokely,  Swaggert  v.  167 
Stokes,  Kendall  v.  263 
Stolley,  Bloomer  v.  315 
Stone,  Armstrong  v.  491 
Black  V.  315 
Hargous  v.  609 
Hays  V,  202 
Irvine  v.  159 
Paige  V.  503 
Parish  v.  424  . 
V.  Massey,  353 
V.  Mitchell,  166 
V.  Seymour,  206 
V.  Sprague,  316 
V.  Swift,  120 
V.  Wilson,  53 
V.  Wyeth,  312,  315,  317 
Stoner,  Young  v.  353 
Stoney  v.  McNeill,  157 
Storer,  Norman  v.  285 
T.  Hinckley,  407 
V.  Zimmerman,  362 
Storms  V.  Thorn,  195 
Storrs,  Vandenheuvel  v.  381 

Wright  V.  193 
Story,  Littlefield  v.  518 
V.  Holcombe,  330 
T.  Livingston,  207 
Stosson  V.  Beale,  134 
Stouse,  Skinner  v.  53 
Stout,  Cresson  v.  67 
Fanshor.v.  162 
State  V.  182 
V.  Hart,  445 
V.  Wren,  162 
Stoughton  V.  Lynch.  207 
V.  Rappalo,  52 
Stover  V.  Ellis,  155 
Stowe  V.  Thomas,  331 

V.  Wyse,  501 
Stowell  V.  Drake,  381 

V.  Goodale,  105 
Strader  v.  Houghton,  193 
Strange  v.  Floyd,  380 
Streeper  v.  Eekert,  378 

V.  Williams,  132 
Streeter  v.  Luter,  140 
Street  v.  Hall,  204 
Strickler  v.  Burkholder,  193 
Strochecker  v.  Bank,  189 
Strong,  Bangs  v.  192 
Moffat  V.  335 
V.  Bass,  448 
V.  Perkins,  433 
V.  Skinner,  485 
V.  Strong,  519 
V.  Tompkins,  162 
V.  Wilkin,  485 
V.  Williams,  448 
Stroud  V.  Bailey,  470 
Struthers,  Black  v.  390 

V.  Kendall,  153 
Stuart,  Ford  v.  57 

Garrett  V.  138 


Stuart  V.  Carson,  130 
Stubbs,  Ilsley  v.  52,  99 

V.  Lund,  99 
Stucky  V.  Clyburn,  510 
Studebaker,  Kirby  v.  193 
Styer,  Castner  v.  200 
Stultz  V.  Dickey,  72 
Sturdivent,  Lawrence  v.  200 
Sturges  V.  Crowninshield,  240 

V.  Bobbins,  206 
Sturgess  v.  Beach,  383 
Subett,  Jackson  v.  354 
Suckley  v.  Turner,  502 
Suggs  V.  Sapp,  285 
Sullivan,  Bank  v.  139,  196 
Woods  V.  445 
V.  Redfield,  317 
V.  Winthrop,  357 
Summers,  Hamilton  v.  408 

Knox  V.  398 
SuMier,  Buchan  v.  384.  397 

V.  Williams,  160 
Sumner's  Appeal,  210 
Sumrall,  Townsley  v.  153 
SutclifiFe  V.  Dohrman,  399 
Sutherland,  Hill  v.  208 
Sutliff,  Gilbert  v.  370 
Sutton,  Whitney  v.  506 
Suydam,  Chouteau  v.  440 
v.  Broadnax,  242 
V.  Vance,  192 
Swaggerty  v.  Stokely,  167 
Swan,  Picquet  v.  374,  485 

Sigfried  v.  156 
Swarnn.  Barrett  v.  403 

'  Doak  V.  403,  407 
Swartwout  v.  Payne,  161 
Sweat,  Gillett  v.  155 
Sweeney,  Ferguson  v.  126 
Sweetzer,  Place  v.  398 
Sweigart  v.  Frey,  339 
Swelt  V.  Brown,  502 
Swett,  Tuttle  v.  144 
Wiggin  V.  276 
V.  Colgate,  508 
V.  Poor,  162 
Swift,  Stone  v.  120 

V.  Thomson,  66 
Swoope,  Huckabee  v.  427 
Sword  V.  Adams,  341 
S^vester,  Lenoir  v.  425 

V.  Smith,  395,  406 
T.  Girard,  78 


Taber  v.  Canon,  503 
V.  Jenny,  263 
V.  Packwood,  334 
Tabor  v.  Robinson,  66 
Tackington,  Pintard  v.  203 
Taffe  V.  Warnick,  67 
Taggart,  Batten  v.  318 

V.  Stanberry,  503 
Tahune  v.  Bray,  125 
Talbert,  Boyd  v.  3;!3 

Henderson  v.  39(> 


Ixviii 


INDEX   TO  AMERICAN"   CASES  CITED. 


Talbot,  Larrabee  v.  241 

Pearson  v.  55 
Talcott,  MeCormick  v.  317 
Taliaferro,  Pratt  v.  302 
V.  Robb,  442 
Tally  T.  Tally,  371 
Talmadge,  Tracy  v.  159 
Talmage  v.  Burlingame,  192 
Talman.  Bower  t.  52 

HoncUette  v.  93 
Patten  v.  432 
Railroad  Company  v.  179 
Tammany,  Leidy  v.  56 
Tarns,  Guy  v.  139 
Tandy,  Moore  v.  441 
Taney  v.  Bachtell,  144 
Tankersley  v.  Anderson,  190 
Tank,  Fish  v.  509 
Tapley  v.  Smith,  67 
Tappan,  Brown  v.  159 
Sawyer  v.  206 
Tappen,  Hasbrouek  v.  134  W 

Tapscott,  Weaver  v.  407 
Tarkington  v.  State,  489 
Tarleton  v.  Baker,  167 
Smith  V.  384 
Tarr  v.  Williams,  486 
Tarver  v.  Nance,  153 

V.  Tarver,  432 
Tate  V.  Evans,  503 

V.  Insurance  Company,  503 
Tatham,  Le  Roy  v.  316 
Tatum,  Hondett  v.  504 
Taul  V.  Everett,  133 
Tayloe  v.  Sandiford,  132,  206 
Taylor,  Bailey  v.  155 

Baker  v.  319 

Branning  v.  172 

Hoteh  V.  502 

Kingsbury  v.  507 

Kirby  v.  392 

Morrison  v.  501 

Moseley  v.  442 

Nevison  v.  334 

Nicholson  v.  93 

Robinson  v.  408 

Rochester  v.  163 

Sands  v.  507 

Shute  T.  132 

Smock  V.  56 

State  V.  160 

Steele  v.  207 

T.  Birmingham,  471 

T.  Drake,  144 

V.  Galland,  392 

T.  Jones,  206 

v.  Robinson,  179 

T.  Rundell,  140 

T.  Taylor,  390 

V.  Townsend,  67 
Taymon  v.  Mitchell,  507 
Tazewell  v.  Smith,  362 
Teackle,  Bailey  v.  471 
Boggs  v.  243 
Tebbs,  Hooe  v.  160 
Tees,  Ewing  v.  144 
Teese,  Sharp  v.  162 
TeUer  v.  Wetherell,  390 


Temple,  Gilpin  v.  406 
Munsell  v.  162 
V.  Cochran,  200 
V.  Pomroy,  503 
Templeman  v.  Biddle,  72 
Ten  Eyek  v.  Vanderpool,  442 
Tenants,  Eraser  v.  504 
Terhune  v.  Colton,  206 
Terral  v.  Adams,  167 
Territory  v.  Redding,  383 
Territ  v.  Bartlett,  162 
Terry,  Ingram  v.  426 
Weed  V.  144 
T.  Bissell,  159 
V.  Olcott,  159 
Tew,  Lowry  v.  55 
Thatcher,  Dixon  v.  126 

V.  Dinsmore,  203 
V.  Morris,  160 
Thayer,  Benneson  v.  202 
Cook  V.  105 
Rivers  v.  374 
T.  Stark,  105 
V.  Thayer,  378 
The  Active,  82 
Antarctic,  207 
Ariadne,  161 
Atlantic,  257 
Aurora,  161,  258 
Bridgewater,  257 
Brig  Nestor,  82 

Seneca,  Brooks  v.  117 
Church,  Shaw  v.  205 

V.  Henderson,  162 
Chusan,  82 
County,  McCoy  v.  56 
Draco,  257  " 

Eastern  Star,  82  _ 
Forrester,  114 
Fortitude,  259 
General  Smith,  82 
Golden  Gate,  82 
Hiram,  161 

Hull  of  a  New  Brig,  Reed  v.  82 
Jerusalem,  82 
Judge,  Emory  v.  347 
Julia,  161 
Lillie  Mills,  82 
Louisa,  Packard  v.  82 
Margaret,  82 
Mary,  82 

Mary  Ann  Guest,  99,  119 
Mayor,  Butler  v.  262 
Lord  V.  178 
Williams  v.  333 
Monsoon,  82 
Monte  Allegre,  510 
Nestor,  82 

Ordinary  v.  McCollum,  207 
Overseers,  Munford  v.  192 
Packet,  257 
Panama,  257 
People,  Davis  v.  192 
People,  Judges  v.  172 
People  V.  Brooks,  491 

T.  Chegaray,  489 
T.  Gibbs,  126 
T.  Howell,  204 


INDEX   TO  AMERICAN   CASES   CITED. 


Ixix 


The  People  v.  Humphreys,  490 
V.  Jansen,  194 
V.  Mercein,  489 
V.  Olmstead,  490 
V.  Russel,  193 

V.  ,  489 

President  v.  Wadleigh,  511 
Rebecca,  82 
Schooner  Marion,  82 
Ship  Fortitude,  82,  258 

Howard  v.  Wissmain,  120 
New  Jersey,  Gardner  v.  82 
Sloop  Hope,  Skinner  v.  117 
Steamboat  John  Jay,  Bogart  v.  117 

John  Owen  v.  Johnson,  121 
Susan  G.  Owens,  Weaver  v.  88 
Tackle  &c.  of  the  America,  82 
Texas,  Gibbs  v.  258 
Virgin,  257 

William  Penn,  Crawford  v.  259 
Young  Mechanic,  82 
Zephyr,  257 
Thing,  Hall  v.  118 
Thomas,  Brantley  v.  509 
Carter  v.  442 
Cutter  V.  406 
Ferguson  v.  106 
Gregory  v.  203 
Hotchkiss  V.  285 
Jones  V.  72 
Lynch  v.  426 
Rogers  V.  98 
Stowe  V.  331 
V.  Brady,  159 
V.  Cameron,  433 
V.  Folwell,  486 
V.  Jenks,  210 
T.  Kelsey,  207 
V.  Lusk,  398 
V.  McElwee,  180 
V.  Reister,  440 
V.  Thomas,  348 
T.  Weeks,  316 
V.  Wilson,  178 
Thompson,  Arbuckle  v.  119 
Barrett  v.  172 
Bledsoe  v.  167 
Caruth  v.  1^1 
Davis  V.  72 
Emerson  v.  516 
Frazier  v.  159 
Lewis  V.  448 
Lichtenthaler  v.  191 
Magniac  v.  202,  373 
Mason  v.  94 
McNair  v.  133 
Robinson  v.  383 
Stephens  v.  202 
Turpin  v.  423 
United  States  v.  392 
Walrath  v.  192 
Ward  V.  403 
V.  Alger,  280 
V.  Ashton,  510 
V.  Brown,  180,  516 
V.  Davies,  162 
V.  Dougherty,  374 
V.  Ketchum,  160 


Thompson  v.  McCullough,  510 
V.  Monrow,  178 
V.  Murry,  486 
V.  Schmidt,  426 
T.  Snow,  404 
V.  Stewart,  601 
V.  Thompson,  72,  433 
V.  Young,  242,  178 
Thomson,  Swift  v.  66 
Thorn,  Gifford  v.  354 
Storms  V.  195 
Thorndike,  Barrett  v.  156 

V.  Godfrey,  501 
Thornton,  Jordan  v.  426 
Randall  v.  507 
V.  Burch,  334 
V.  Dobney,  193 
V.  Henry,  143 
V.  Williams,  204 
V.  Wynn,  140 
Thoroughgood  v.  Walker,  133 
Thorp,  Dunn  v.  373 
Thrall  v.  Newall,  510 
Thrasher  v.  Ingram,  285,  426 
Threadgill,  Coppedge  v.  477 
Throckmorton,  Fowler  v.  162 
Throop,  Bank  v.  172 
Thurston  v.  James,  394 

V.  McKown,  497 
V.  Perclval,  162 
Tibbits,  Hoover,  v.  99 
Tichout,  Emery  v.  206 
Tiernan,  Bower  v.  192 

Pierce  v.  397,  404 
Slatter  v.  200 
V.  Jackson,  519 
V.  Poor,  487 
Tiernans,  Harrisons  v.  158 
Tilden,  Speneer  v.  133 
Tillinghurst  v.  Champlin,  384,  401 
Tillotson,  United  States  v.  193 
Tilton,  Trumbull  v.  139 

V.  Tilton,  441 
Timberlake  v.  Graves,  334 
Timrod  v.  Shoolbred,  508 
Tindale  v.  Meeker,  179 
Tingley  v.  Cutler,  134 
White  V.  134 
Tinsley,  Mercer  v.  105 

V.  Anderson,  190 
V.  Oliver,  190 
Tinsman,  FauU  v.  55 
Tioga,  People  v.  54 

V.  Seneca,  138 
Tisdale,  Burtus  v.  397 
Titus,  Cobb  V.  161 
Jonson  V.  510 
Railroad  Co.  v.  380 
V.  Scantling,  262 
Tobey  v.  Barber,  202 
Tobias  v.  Frances,  67 
Tobie,  Rand  v.  162 
Toby,  Randon  v.  140 

v.  Reed,  73 
Todd,  Jaques  v.  501 
Mowry  v.  619 
V.  Rough,  262 
Toller,  Armstrong  v.  159 


Ixx 


INDEX   TO   AMERICAN"   CASES   CITED. 


Toller  V.  Armstrong,  159 
ToJliver,  Baird  v.  132 
Tolson  V.  Tolson,  347 
Tom  V.  Goodrich,  189 
Tompkins,  Anderson  v.  408 

Freeman  v.  72 

St.  Andrew's  Church  v.  172 

Strong  V.  1(52 

V.  Tompkins,  432 
Toombs  T.  Hill,  401 
Topham  v.  lloche,  504 
Topping,  Bank  v.  442 
Toris  V.  Long,  508 
Torrey  v.  Baxter,  204 
Torry  v.  Hadley,  204 

V.  Robinson,  126 
Toumin  v.  Buchanan,  378 
Towar  v.  Harrington,  210 
Towell  V.  Gatewood,  506 
Towers  v.  Hagner,  485 
Towle  V.  Lovet,  125 
Towne,  Smith  v.  426 
Townes,  Hortons  v.  502 
Towns  V.  Riddle,  193 
Townsend,  Fleming  v.  378 

Taylor  v.  67 

V.  Briggs,  138 
,  V.  Maynard,  374 

V.  Smith,  178 

V.  Riddle,  193,  389 
Townsley  v.  Sumrall,  153 
Towsey,  Gardiner  v.  138 
Tracey  v.  Wikoff,  207 
Tracy",  Erie.  v.  262 

V.  Talmadge,  159 
Train,  Wheeler  v.  52 
Transportation  Co.,  Bank  v.  121 
Trapnall  v.  Hattier,  53 
Trask  v.  Donohue,  433 
Traverse,  Stille  v.  119 
Travis  v.  Bishop,  105 
Treadwell,  Bank  v.  395 

v.  Brown,  401 

T.  Moore,  206 

V.  Roscoe,  398 
Treasurer  v.  Friott,  390 
Tremper,  Holmes  v.  67,  69 
Trevilian,  Miller  v.  205 
Trezevant,  Tunno  v.  373,  400 
Trice  v.  Cochran,  510 
Trigg,  Pierce  v.  384 

Pilkington  v.  53 
v.  Faris,  510 
Tripner  v.  Abrahams,  374 
Tritts  v.  Colwell,  519,  475 
Trotter,  Cocke  v.  126 
Troup  V.  Smith,  120 
v.  Wood,  172 
Wilson  V.  504 
Troutman,  Alexander  v.  134 

V.  Barnett,  161 
Troy,  Bell  v.  500 
Truax,  Rose  v.  159 
True,  Hosmer  v.  132 
Trull,  Cole  v.  208 

Dayton  v.  204 
v.  Fuller,  66 
Trumbo,  Jordan  v.  193 


Trumbull,  White  v.  208 
V.  Tilton,  139 
Trumper,  Defreeze  v.  510 
Truscott  v.  King,  172 
Trustees,  Bailey  v.  144 
Foster  V.  190 
Jaques  v.  485 
Mayor  v.  178 
Wright  V.  362 
V.  Ja(iues,  486 
V.  Miller,  192 
Tucker,  Badlam  v.  126 
Clark  v.  144 
Gaunt  V.  422 
Price  V.  134 
Wells  V.  420 
V.  Bishop,  354 
V.  Oxley,  397 
V.  Peaslee,  408 
V.  Starks,  433 
Tuckerman  v.  Newhall,  394 
Tudor  V.  Goodloe,  192 
Wiggin  V.  392 
Tunnehill,  Gunn  v.  191 
Tunno  v.  Trezevant,  400 
Tunstall,  Pope  v.  202 

V.  Pollard,  516 
Tuqua,  Commonwealth  v.  54 
Turcher,  Jones  v.  191 
Smith  V.  105 
Turner,  Fadden  v.  105 
Ferguson  v.  192 
Hanover  v.  141 
Hunt  V.  159 
North  V.  55 
Suckley  v.  502 
V.  Bissell,  404 
v.  Burrows,  117 
V.  Calvert,  160 
V.  Chrisman,  140 
V.  Fenner,  143 
V.  Tuttle,  510 
Turney,  Morrow  v.  105 

V.  Bank,  160 
Turnley,  Bank  v.  500 
Turnpike  Co.,  Anderson  v.  203 

Selleck  v.  206 
Turpin  v.  Thompson,  423 
Turrentine,  Nice  v.  0% 
Turrill  v.  Boynton,  193 
Tuthill  V.  Davis,  161 
Tuttle,  Turner  V.  510 
V.  Swett,  144 
Tuxbury  v.  Miller,  162 
Tygart  v.  Peeples,  432 
Tyler,  Carroll  v.  162 
V.  Dyer,  262 
V.  Webb,  262 
Tyre,  Sims  v.  380 

V.  Causay,  507 
Tyson,  Denison  v.  503 
V.  Pollock,  203 
T.  Robinson,  262 

.U. 

Ulrich,  Rewalt  v.  335 

V.  Voneida,  172 


INDEX   TO   AMERICAN   CASES   CITED. 


Ixxi 


Underhill,  Low  v.  193 

Van  Courtlandt  v.  262 

Underwood,  Ridtjway  v.  374 

United  States,  Boody  v.  206 
Farrar  v.  160 
Jones  V.  206 
Locke  V.  193 
Speake  v.  155 
Smith  V.  160 
V.  Ames,  263 
T.  Daniel,  125 
V.  Duncan,  180 
^  V.  Green,  489 

•  v.  Gurney,  133 

T.  Hillegas,  193 
V.  Howell,  192 
T.  Huck,  399 
V.  Hunt,  193 
V   Kirkpatrick,  194,  206 
V.  Linn,  155 
v.  Lyman,  205 
V.  McLemore,  207 
V.  Nieholl,  294 
V.  Patterson,  207 
V.  Price,  204 
V.  Russell,  155 
T.  Simpson,  193 
v.  Thompson,  392 
V.  Tillotson,  193 
V.  Wardwell,  206 
V.  Wilson,  242 

Upclurch  V.  Norsworthy,  426 

Uphtm  V.  Brimhall,  160 
V.  Lefavour,  206 

Uptm,  Reed  v.  203 

V.  Hubbard,  242 

Usilon  V.  Usilton,  336 

Uzza  V.  Mack,  191 


Valeitine,  Johnson  v.  353 
V.  Foster,  140 
V.  Piper,  504 
V.  Valentine,  262,  489 
Valbn  V.  Life  Association,  252 
VanAllen,  Anderson  v.  518 

V.  Vanderpool,  504 
Alstyne  v.  Wimple,*  159 
Amringe  v.  Morton,  155 

V.  Peabody,  502 
Arsdale,  Van  Raugh  v.  241 
Braeklin  v.  Fonda,  509 
Courtlandt  v.  Underhill,  262 
Doren  v.  Everitt,  72 
Duser,  Ward  v.  279 
Epps  V.  Dilleye,  202 
Hook  V.  Whitlock,  241 
Horn,  Osborne  v.  357 
Kirk,  White  v.  120 
Marter  V.  Babcock,  164 
Ness  V.  Pacard,  67,  69 
Pelt,  Warren  v.  507 
Raugh  V.  Van  Arsdale,  241 
Rensselaer,  L'Amoreaux  v.  487 
Ludlow  V.  162 


Van  Rensselaer  v.  Roberts,  206 
Riper  v.  Van  Riper,  440 
Sautvoord  v.  St.  John,  121 
Slyck,  Seymour  v.  207 
Tuyl,  Williams  v.  157 
Vechtin  v.  Graves,  418 
Vleet  V.  Jones,  205 
Vorst,  Morris  Canal  v.  203 
Wagener  v.  Baldwin,  445 

Vanada  v.  Hopkiris,  504 

Vananken  v.  Hornbeck,  155 

Vance  v.  Campbell,  471 
•     V.  Monroe,  207 
Suydam  v.  193 
Williams  v.  508 

Vancleave,  Williams  v.  471 

Vandenheuvel  v.  Storrs,  381 

Vanderburgh  v.  Hall,  404 

Vanderen,  Morris  v.  155 

Vanderhorst  v.  McTaggart,  510 

Vanderpoel,  Ten  Eyck  v.  442 
Van  Allen  v.  504 

Vanderpool,  Franklin  v.  204 

Vanderslice,.  Commonwealth  V.  178,  207 

Vandusen,  Coterill  v.  406 

Vanhook  v.  Barnett,  157 

Vanhorne  v.  Dorrance,  155 

Vanhouten  v.  Reilly,  55,  56 

Vanmeter,  Bank  v.  153 

Vanuxem  v.  Hazlehursts,  242 

Vargas,  Newhall  v.  102 

Varner  v.  Nobleborough,  203 

Varnum,  Riddle  v.  94 

Varrell  v.  Wendell,  347 

Vass,  Ward  v.  191 

Vassar  v.  Camp,  403 

Vasse,  Comegys  v.  54,  55 

Vaughan,  Hillyer  v.  206 
Keen  v.  203 
V.  Campbell,  508 
V.  Vaughan,  284,  427 
V.  Winklee,  125 

Vaughn  V.  Bell,  105 

V.  Lovejoy,  471 

Vaugh  V.  Haldeman,  67 

Vaux,  Snyder  v.  52,  53 

Venable  v.  Levick,  408 

Venning  v.  Gault,  508 

Ventress  v.  Smith,  498 

Verdenburgh,  Waddington  v.  190 

Vernon,  Guery  v.  335 

Vernoy,  Hermance  v.  510 

Verree  v.  Hughes,  178 

Very  v.  Levy,  503 

Vickery  v.  Benson,  156 

Vick,  Lyon  v.  427 

Vilas  V.  Pusey,  192 

Vincent  v.  Groom,  162 

Vingas,  Newhall  v.  98 

Vining,  Graham  v.  127 
V.  Gilbreth,  93 

Vironneau  v.  Pegrnm,  486 

Viset  V.  Bertrand,  139 

Vliet  V.  Camp,  158 

Voneida,  Ulrich  v.  172 

Voorhis  v.  Child,  383 

V.  Freeman,  66,  70 

Vroom  V.  Smith,  159 


Ixxii 


INDEX   TO   AMERICAN   CASES   CITED. 


W. 


Wade,  Coleman  v.  263 
Green  v.  191 
V.  Green,  191 
y.  Withington,  155 
Wadhams,  Missionary  Society  v.  485 
Waddington,  Griswold  v.  162 
Seamen  v.  162 
V.  Verdenburgh,  190 
Wadleigh,  The  President  v.  511 
Wadsworth  v.  Allen,  193 

V.  Manning,  404 
Wagener,  Bailey  v.  445 
Wagman  v.  Hoag,  193 
Wagner  v.  Ellis,  488 

Woodhull  V.  240 
Wagner's  Estate,  486 
Waher,  Reynolds  v.  408 
Waine  v.  Elderkin,  262 
Waite,  Fitch  v.  200 

McLaughlin  v.  78 
Wait  V.  Brewster.  204,  404 
Wakeley,  Pack  v.  262 
Walbridge,  Hall  v.  125 
Walcot  V.  Pomeroy,  52 
Waldo,  Missroon  v.  508 

V.  Belcher,  94 
Waler,  Ralston  v.  347 
Wales,  Baxter  v.  133 
Walker,  Bank  v.  153,  190 

Berry  v.  160 

Block  V.  57 

Blunt  V.  203 

Foster  v.  194 

Gapiblin  t.  57 

Gibson  v.  486 

Lewis  V.  421 

Noble  V.  161 

Silter  V.  398 

Sims  V.  422 

Thoroughgood  V.  133 

T.  Bank,  159 

v.  Craig,  440 

V.  Curvey,  200 

V.  Eastman,  139 

V.  Engler,  134 

V.  Eyth,  211,  400 

V.  House,  383 

T.  McCulloch,  392 

V.  Prowder,  357 

V.  Sherman,  66,  67 

V.  Skipwith,  501 

Y.  Walker,  426,  263 
Wallace,  Ballume  v.  105 

Carlisle  v.  87 

Morrill  v.  507 

Scull  V.  516 

V.  Agry,  203 

V.  Coston,  485 

V.  Farman,  205 
V   Harmstead,  156 

V.  AYallace,  445 
Wallack,  Dermott  v.  134 
Waller,  McKinney  v.  192 

V.  Long,  133 
Wallingsford  v.  Allen,  375 
Wallis,  Levy  v.  106 


Walls  V.  Stewart,  446 
Wall  V.  Hinds,  67 
Walmsley  v.  Read,  432 
Wain  V.  O'Conner,  71 
Walrath  v.  Thompson,  192 
Walsh,  Mowry  v.  498 
Oliver  v.  54 
T.  Bailie,  192 
y.  Nourse,  242 
y.  Peirce,  500 
Walt  y.  Harper,  162 
Walter  v.  Radcliffe,  516 

v.  Ross,  119 
Walters  r.  Nettleton,  128 
Walton,  Lusher  v.  263 
Martin  v.  503 
v.  Ross,  99 
v.  AValton,  445 
Wampole,  Dallam  v.  485 
Waples  V.  Mclivaine,  125 
Ward,  Cameron  v.  143 
Doolin  V.  162 
Gale  V.  66 
Gulick  V.  162 
Hayes  v.  191 
Jones  y.  207 
Ladson  v.  448 
Reynolds  v.  192 
Shepherd  v.  396 
Smithwick  v.  394 
Stark  v.  378 
Woodrop  V.  397 
Young  V.  475 
y.  Barber,  383 
y.  Coffield,  448 
V.  Johnson,  204,  389,  392 
y.  Saunders,  354 
y.  Thompson,  403 
y.  Van  Duser,  279 
y.  Vass,  191 
y.  AVhitney,  120 
Warden  v.  Eden,  518 

Clayton  v.  441 
Warden  v.  Greer,  120 
Wood  v.  375 
Wardwell,  United  States  y.  206 
Ware,  Smith  v.  138 
v.  Cook,  354 
V.  Sharp,  486 
y.  Stephenson,  .144 
Warford  v.  Colvin,  432 
Waring,  Gallagher  v.  509 
Lang  V.  384 
Oatfield  V.  138 
V.  Edmonds,  423 
Warner,  Beardsley  v.  193 
Hunter  v.  94 
Jones  V.  504 
V.  Hitchins,  255 
y.  Martin,  502 
y.  Whillaker,  55 
Warnick,  Taffe  v.  67 

V.  Grosholz,  144 
Warning,  Lang  v.  383 
Warren,  Aldrich  v.  497 
Banchor  v.  93 
Conroy  v.  497 
Rathbone  v.  192 


INDEX   TO  AMERICAN   CASES   CITED. 


Ixxiii 


Warren    v.  Crabtree,  159 
V.  Skinner,  202 
V.  Van  Pelt,  507 
V.  Whitney,  140 
v.  Wigfall,  445 
Washabough,  Anderson  v.  440 
Washburn,  Pingry  v.  1G2 
Wheeler  v.  194 
V.  Bank,  397 
V.  Franklin,  280 
V.  Gould,  316 
Washington,  Brooke  v.  384 

Univ'ty,  Conkling  v.  397,  404 
Wason  V.  Rowe,  507 
Water  v.  McClellan,  105 
Waterbury,  Dodge  v.  262 
Waterman,  Hubler  v.  211 

V.  Matteson,  54 
Waters,  Powell  v.  153,  161 
V.  Howard,  448 
V.  Riley,  390 
V.  Simpson,  138,  192 
Waterston  Manufacturing  Co.  v.  501 
Wathen,  Smoot  v.  380 
Watkins,  Price  v.  362 

Slocumb  V.  155 
V.  Kirkpatrick,  151 
V.  Halstead,  138 
V.  Hill,  204 
Watkinson  v.  Ingleby,  202 
Watmough,  Morgan  v.  398 
Watson,  Allen  v.  262 
Bates  V.  159 
Boykin  v.  390 
Fries  v.  178 
Goodyear  v.  190 
Reddish  v.  192 
Sanders  v.  190 
V.  Boatwright,  508 
V.  Browne,  242 
T.  Fletcher,  167 
V.  Owens,  203,  396 
Watt,  Logan  v.  432 
V.  Hoch,  207 
V.  Sheppard,  132 
Watts  V.  Deavor,  196 
V.  Kinney,  190 
Waud  V.  Waud,  490 
Waugh,  Pitts  V.  395 

V.  Mitchell,  262 
Wayman  v.  J^pes,  370 
Wayne  v.  Kirby,  192 
Weakley  v.  Bell,  194,  203 
Weather  v.  Mudd,  200 
Weatherhead,  Sewell  v.  433 
Weatherhedd  v.  Boyers,  160 
Weaver,  Brigham  v.  105 
Hosack  V.  498 
Jewett  V.  125 
Roundtree  v.  138 
v.  Laurence,  52 
V.  Lawrence,  126 
V.  Russell,  200 
V.  Tapscott,  407 
V.  The  Susan  G.  Owens,  88 
Webb,  Brown  v.  105 
Galway  v.  263 
Graves  v.  190 


Webb,  Parsons  v.  502 
Potter  V.  432 
Snyder  v.  374 
Tyler  v.  262 
V.  Goldsmith,  202 
V.  Miller,  200 
V.  Pierce,  258 
V.  Powers,  322,  330 
Webber  v.  I^^es,  263 

V.  Williams  College,  503 
Weber  v.  Samuel,  370,  211 
Webster,  Association  v.  304 
Page  V.  193 
V.  Cobb,  151 
V.  Drinkwater,  138 
Weed,  Johnson  v.  202 

V.  Carpenter,  504 
V.  Snow,  203 
V.  Terry,  144 
Weekly  v.  Burnham,  138 
Weeks,  Insurance  Company  v.  200 
Thomas  v.  316 
V.  Lippencott,  159 
V.  Sego,  486 
Weem  v.  Bryan,  72 
Wegtly  V.  Railroad,  339 
Weimer  v.  Clement,  507 
Weire  v.  Davenport,  54 
Welch,  Hawkins  v.  160 

v.  Mandeville,  55,  56 
Welcbman,  Howard  v.  153 
Weld  V.  Cutler,  106 
Welling,  Rice  v.  161 
Wellington  v.  Gary,  192 
WeUs,  Allen  v.  398 

Berryhill  v.  179 
Heath  v.  516 
Myers  v.  203 
Scott  V.  94 
V.  Dain,  262 
V.  Lain,  262 
V.  Spears,  510 
V.  Tucker,  420 
T.  Wells,  376 
Welsh  V.  Cabot,  257 
V.  Carter,  507 
V.  Mandeville,  519 
White  V.  98 
Welty  V.  Lentmyer,  263 
Wendell,  Belknap  v.  404 
Crosby  v.  471 
Durell  V.  394 
Varrell  v.  347 
Wendover  v.  Hogeboom,  114 
Wenrich,  HefFner  v.  155 
Wentworth,  Caldwell  v.  206 
Hill  V.  66 
Shapleigh  v.  105 
V.  Leonard,  105 
Wescott  V.  Gunn,  105 
Weslerto  v.  De  AVitt,  423 
West,  Roby  v.  159 
V.  Berlin,  119 
V.  Cunningham,  508 
V.  Smith,  284 
V.  West,  485,  255 
Westcott  V.  King,  190 
Weston,  Babcock  v.  242 


Ixxiv 


INDEX   TO   AMERICAN   CASES   CITED. 


Weston  V.  Hight,  421 

V.  Penniman,  114 
Wetherbee  v.  Foster,  67 
Wetherell,  Teller  v.  390 
Wetherill,  Flanagin  v.  179 
Jackson  v.  507 
V.  Nelson,  507 
Wetmore  v.  Scovell,  330 
Wetzell  V.  Bussard,  140 
V.  Sponsler,  193 
Whale,  Sicard  v.  242 
Wharley  v.  AVharley,  445 
Wharton,  Kingston  v.  139 
Wheatley,  Cheep  v.  125 
Keene  v.  323 
V.  Colhoun,  384 
Wheaton  v.  Peters,  319,  330 

V.  Sexton,  374 
Wheeler,  Anderson  y.  241 
Cowan  V.  504 
.   Fisher  v.  241 
Goodale  v.  504 
Hughes  V.  161,  204 
Humphreys  v.  204 
Marsh  v.  362 
Mead  v.  134 
V.  Guild,  497 
V.  Russell,  158 
V.  Train,  52 
V.  Washburn,  194 
V.  AVheeier,  55,  56,  519 
Wheelock  v.  Cozzens,  53 

V.  Leonard,  242 
Wheelright,  Cheston  v.  206 

V.  Depeyster,  498 
Whilden  v.  Whilden,  357 
Whipple  V.  Dow,  357 
•Whislow  V.  ChiflFelle,  384 
Whitaker,  Blantier  v.  503 
Cozzins  V.  508 
Eaton  V.  143 
Gwinn  v.  178,  207 
V.  Cone,  162 
Whitall  V.  Clark,  485 
Whitcher,  Carlton  v.  159 
Whitcomb  v.  Preston,  133 
White,  Beach  v.  374 
Brooks  V.  202 
Cole  V.  105 
Croft  V.  156 
Easter  v.  144 
Hodgon  V.  516 
Powell  V.  191 
Prior  V.  105 
Kaymond  v.  67 
Slaver  v.  398 
Smeed  v.  191 
V.  Arndt,  66,  67 
V.  Bank,  160 
V.  Beattie,  444 
V.  Buss,  167 
V.  Canfield,  241 
V.  Dougherty,  397 
V.  Hopkins,  153 

V.  Insurance  Company,  383,  397 
V.  Jordan,  202 
V.  Puryean,  263 
V.  Railroad  Company,  56 


White    V.  Smith,  389 
V.  Tingley,  134 
V.  Trumb\ill,  208 
V.  Van  Kirk,  120 
V.  Welsh,  98 
V.  M'hite,  285,  426 
V.  AVinchester,  445 
White's  Appeal,  67 
Whitefield  v.  McLeod,  508 
AVhitesides,  Robeson  v.  132 
AVhitehead,  Shirley  v.  421 
AVhiting,  Baker  v.  371 
Holman  v.  153 
V.  ]5raston,  67,  69 
V.  Daniel,  157 
Whitlock,  Muldon  v.  202 
AVhitman  v.  Freese,  507 
Whitmer  v.  Frye,  155 
Whitmarsh  v.  Cutting,  72 
Whitney,  Burbank  v.  346 
Crocker  v.  55 
Herrick  v.  510 
Ward  V.  120 
Warren  v.  140 
V.  Eramett,  312,  316 
V.  Heywood,  105 
V.  Ladd,  398 
V.  Lowell,  105 
V.  Slayton,  164 
V.  Sutton,  506 
Whitsell  V.  Womack,  155,  159 
AVhittaker,  Warner  v.  55 
AVhittemore  v.  Adams,  241 
V.  Cutter,  316 
Whitter,  Jones  v.  519 
Whittle  V.  Skinner,  193 
AVhittock,  Van  Hook  v.  241 
Whoolery,  Fisher  v.  62 
Wickersham,  Mason  v.  202 
Wicker  v.  Pope,  156 
AVickes  v.  Caulk,  156 
AVickham  v.  Conklin,  162 
AVickliffe,  Guthrie  v.  207 
AViener  v.  Davis,  210 
AYiester,  Sneed  v.  380 
Wigfull,  AVarren  v.  445 
Wiggin,  Ladd  v.  440 

Simpson  v.  508 
V.  Swett,  276- 
V.  Tudor,  392 
Wiggins,  Chancellor  v.  510         ^ 

V.  Anderson,  200 
AVigginton,  Greenough  v.  487 
AAMghtman,  Lothrop  v.  398 
AVightman,  Ripley  v.  339 
AVi'kotr,  Tracey  v.  207 
Wilbur  V.  Gilmore,  127 

V.  How,  162 
Wilcher  v.  Hamilton,  178 
AVilcomb,  King  v.  68 
AVilcos,  Bernard  v.  383 
Denton  v.  162 
Harrison  v.  201 
Hilman  v.  507 
Provost  V.  106 
Railroad  Company  v.  200 
Savings  Bank  v.  303 
Wild,  Sommers  v.  55 


INDEX   TO  AMERICAN   CASES  CITED, 


Ixxv 


Wilder,  Gaylor  v.  314,  316 
Huntington  v.  501 
Rice  V.  139 
V.  Keeler,  383,  397 
Wildes  V.  Fessenden,  202 
Wiles,  Hall  v.  312 

V.  Maddox,  398 
Wiley  V.  Gray,  374 

V.  Moore,  157 
Wilkes  V.  Clark,  395 

V.  Rogers,  357 
Wilkin,  Strong  v.  485 
Wilkins,  Bank  v.  401 
Carley  v.  507 
Corley  v.  506 
Dunklin  v.  56 
Mirrian  v.  140 
Wilkinson  v.  Bank,  123 
V.  Jett,  404 
V.  Wright,  485 
Willard,  Erickson  v.  345 
Frost  V.  105 
Jackson  v.  200 
Phelps  V.  89 
•     V.  Beckford,  263 
Wilcocks,  Greely  v.  56 
Willett,  Jones  v.  56 
Willey,  Fessenden  v.  242 
Williams,  Alexander  v.  426 
Allen  V.  119 
Blair  v.  240 
Boyer  v.  73 
Briggs  V.  206 
Clementson  v.  140 
Corley  v.  162 
Crook  V.  162 
Dakin  v.  132 
Dean  v.  207 
Denning  v.  376 
Dey  V.  448 
Newell  V.  151 
Pearson  t.  134 
Reawick  v.  153 
Smith  V.  510 
Streefer  v.  132 
Strong  V.  448 
Sumner  v.  160 
Tarr  v.  486 
Thornton  v.  204 
V.  Allen,  94 
V.  Bank,  178 
V.  Benedict,  180 
T.  Cowden,  471 
V.  Craig,  260 
V.  Crary,  448 
V.  Donaldson,  486 
V.  Ehringhaus,  380 
V.  Getty,  501 
V.  Green,  134 
V.  Hall,  371 
V.  ilolden,  441 
V.  Iloutaling,  207  ' 
V.  Moore,  189 
V.  Price,  180 
V.  Soulier,  404 
V.  Spafford,  509 
V.  Stanton,  202 
V.  The  Mayor,  333 


Williams  v.  Vance,  508 

V,  Vancleave,  471 
V.  Van  Tuyl,  157 
v.  Williams,  161,  189,  490 
V.  Woodman,  167 
Williams's  App.,  441 

College,  Webber  v.  503 
Williamson,  Gumming  v.  486 
Millor  V.  486 
V.  Beckham,  486 
V.  Hall,  189 
V.  Sammons,  510 
Willing  V.  Peters,  140,  362 
WiUings  V.  Consequa,  204,  389, 

392,  507 
Wmis,  McKim  v.  241 

V.  Parsons,  200 
Williston,  Overton  v.  66 
Wilmerding,  Cartwright  v.  99 

V.  Hart,  84 
Wilson,  Allison  v.  362 

Chevallier  v.  421 
Coe  V.  200 
Crawford  v.  508 
Dehart  v.  501 
Doty  V.  138 
Fant  V.  160 
Gray  v.  262,  381 
Kennerly  v.  125 
Kimball  v.  381 
Miller  v.  126 
Mullen  V.  375 
Perry  v.  126 
Pitcher  v.  144 
Stone  V.  53 
Thomas  v.  178 
United  States  v.  242 
V.  Albright,  200 
V.  Bank,  194 
v.  Barnum,  318 
V.  Buchanan,  378 
V.  Clark,  144 
V.  Conine,  397 
V.  Ferguson,  511 
V.  Glover,  193 
V.  Leslie,  105 
V.  Rine,  426 
v.  Rosseau,  314,  317 
V.  Shackleford,  507 
V.  Simpson,  314 
V.  Society,  158 
V.  Soper,  383 
V.  Troup,  504 
Wilt,  Snyder  v.  153 

V.  Franklin,  62 
Wilter  V.  Richards,  398 
Wimple,  Van  Alstyne  v.  159 
Winans  v.  Company.  317 
Winchester,  Knapp  v.  78 
White  V.  445 
V.  Beardin,  190 
Winder,  Diffenderfer  v.  370 
Windley,  Merritt  v.  426 
Windows  v.  Mitchell,  421 
AVinebrenner's  Appeal,  190 
Winklee,  Vaughan  v.  125 
Winkley,  Odwine  v.  316 
Winn,  Albert  v.  373 


Ixxvi 


INDEX   TO  AMERICAN   CASES   CITED. 


.  Winn,  Buck  v.  384 
State  V.  182 
Winship  v.  Bank,  307 
Winslow,  Douglass  v.  398 
Leonard  v.  93,  94 
Mitchell  V.  55 
Parsons  v.  162,  470 
T.  Leonard,  86 

V.  Mercliant's  Ins.  Co.,  66,  69 
V.  Norton,  119 
Winsor,  Kendall  v.  318 

V.  Lombard,  507 

V.  McLellan,  105 

Winter,  Donaldson  v.  433 

V.  Ludlow,  371 
Wintersmith  v.  Pointer,  397 
Winters  v.  McGhee,  127 
Winthrop,  Sullivan  v.  357 
Winton,  Bostick  v.  351 
Wintringham  v.  Wintringham,  172 
Wise,  Bank  v.  339 

V.  Hilton,  204 
Wiseman,  Smith  v.  354 
Wiser  v.  Blackly,  371 
Wister,  Miles  v.  357 
Witham  v.  Butterfield,  105 
Withers,  Barry  v.  519 

V.  Atkinson,  156 
V.  Yeadon,  346 
Withington,  Heath  v.  485 

Nightingale  v.  491 
Wade  V.  155 
Witter,  Jones  v.  57 
Witmoyer,  Kloif  v.  504 
Wolfersberger,  Worman  v.  210 
Wolf  V.  Wyeth,  204 
Wolfe,  Rudy  v.  189 
T.  Howes,  339 
V.  Myers,  121 
Womack,  Foard  v.  153 

Whitsell  V.  155,  159 
V.  Greenwood,  354 
Wood,  Bartlett  v.  66 
Byxbie  v.  54 
Bridges  v.  376 
Egberts  v.  383,  400 
Frost  V.  504 
Gillespie  v.  122 
Green  v.  123 
Kitteridge  v.  71,  72 
Troup  V.  172 
T.  Ashe,  509 
V.' Edgar,  200 
V.  Leland,  189 
V.  Malan,  242 
V.  McCaen,  502 
V.  Partridge,  518 
V.  Savage,  374 
V.  Underbill,  317 
V.  Warden,  375 
V.  Yeatman,  99 
Woodbridge,  Davenport  v.  518 

V.  Wright,  242 
Woodbury,  Bonaffe  v.  205 
V.  Larned,  503 
Woodcock  v.  Parker,  316 
Wooden  v.  Butler,  55 
Woodford  v.  McClanahan,  503 


Woodford  v.  Paterson,  144 
Woodhull  V.  Wagner,  240 
Woodley  v.  Findlay,  335 
Woodman,  AVilliams  v.  167 
Woodrop  V.  Ward,  397 
Woodruff,  McAlpin  v.  334 

Banking  Company,  373 
Binns  v.  330 
V.  French,  200 
Woods,  Carleton  v.  159 
Chism  V.  570 
Conroy  v.  400 
Ensign  v.  384 
Seixas  v.  507 
Shattuck  V.  162 
Yeatman  v.  384 
V.  Moore,  446 
V.  Sullivan,  445 
Woodson,  Bowles  v.  144 

V.  Perkins,  485  « 
Woodward,  Bank  v.  192 
Haskin  v.  66 
Miller  V.  290 
V.  Harris,  123 
V.  Woodward,  374 
Woodworth,  Rankin  v.  56 
V.  Bank,  155 
Woolley  v.  Constant,  156 
Woolwich  V.  Forrest,  160 
Woombwell,  Keith  v.  373 
Wooten  V.  Howard,  58 
Worcester  v.  Eaton,  162 
Workheiser,  Henning  v.  155 
Workman  v.  Guthrie,  504 
Work  v.  Kase,  153 
Worley,  High  v.  362 
Wprm'an  v.  Wolfersberger,  210 
Wormley  v.  Wormley,  364 
Woorall,  Graves  v.  162 
Worrall's  Accounts,  375 
Worrall  v.  Gheen,  157 
Worrel  v.  McClinaghan,  134 
Worster,  Scudder  v.  93 
Worthington,  Easton  v.  498 

V.  Ferguson,  190 
V.  Shipley,  378 
Worthy  v.  Johnson,  498,  510 
Wrary,  Beatty  v.  383 
Wrenu,  Cunningham  v.  193 
Wren,  Stout  v.  162 
Wright,  Bulkley  v.  389 
Dillon  V.  53 
Eastman  v.  55,  56,  519 
Hart  V.  508 
Heath  v.  330 
Navigation-  Co.  v.  164 
Lloyd  V.  96 
Wilkinson  v.  485 
Woodbridge  v.  242 
V.  Abbott,  178 
V.  Boynton,  504 
V.  Brown,  486 
V.  Judson,  292 
V.  Steele,  148 
V.  Stockton,  193 
V.  Storrs,  193 
V.  Trustees,  362 
V.  Wright,  155 


IXDEX   TO  AMERICAN   CASES   CITED. 


Ixxvii 


Wright  V.  Wright.  424 
Wurtz,  Cameron  v.  180 

Joy  V.  393 
Wyatt,  Crosby  V.  192 
Wyckoflf,  Seymour  v.  504 

V.  Loughead,  160 
Wyeth  v.  Stone,  312,  315,  SI'S 

Wolf  V.  204 
Wylly  V.  Collins,  486 
Wyman,  Gushing  v.  203 
Mills  V.  138 
T.  Mitchell.  241 
T.  Smith,  144 
Wynn,  Starret  v.  487 

Thornton  v.  140 
V.  Brooke,  189 
Wynne,  Harris  v.  191 
Wyse,  Stowe  v.  501 

Y. 

Yale,  Lewis  v.  123 

V.  Yale,  383,  397 
Yancey  v.  Littlejohn,  192 
Yarborough,  Knight  v.  347 
Miller  v.  508 
Eeynolds  v.  133 
Yard  v.  Fatten,  190 
Yates,  Barnard  v.  508 
Yates  V.  Donaldson,  153 
Yeadon,  AVithers  v.  346  i 
Yearsley's  Estate,  399 
Yeatman,  Beaumont  v.  106 


Yeatman,  Wood  v.  99 

V.  Woods,  384 
Yeaton  v.  Roberts,  354 
Yeomans  v.  Chatterton,  162 
Yerger  v.  Rains,  162 
Youghe  V.  Linton,  190 
Young,  McCormick  v.  160 
Simpson  v.  390 
Thompson  v.  242 
V.  Austin,  94 
V.  Carson,  444 
V,  Kimball,  83,  126 
T.  Stoner,  353 
V.  Ward,  475 
V.  Young,  263 
Youngblood  v.  Keadle,  105 
Yrquhart  v.  Mclver,  503 
Yundt  V.  Roberts,  159 
Young,  Kuns  v.  144 

Z. 

Zacharie,  Boyle  v.  240 
Zachrisson  v.  Ahman,  119 
Zarega  V.  Poppe,  120 
Zeigler  v.  Eckart,  448 
Zellweger  v.  CaflFe,  153 
Zent  V.  Heart,  196 
Zimmerman,  Huber  v.  502 
Storer  v.  362 
Zengizer's  App.,  400 
Zule  v.  Zule,  338 


INDEX  TO  THE  ENGLISH  CASES 

CITED  IK  THE  AMEEICAK  NOTES. 


Adams,  Ray  v.  347 
Allwood  V.  Heywood,  64. 
Assurance  Co.,  Dalby  v.  251 
Atkins;  Wright  v.  347 
Atkinson  v.  Baker,  64 
Attorney-General,  Doyley  t.  347 
Aylett  V.  Dodd,  134 
Baker,  Atkinson  v.  64 
Ballam,  Justin  v.  81 
Barker,  Roberts  v.  71 
Bell  V.  Humphries,  117 
Bellamy  v.  Majoribanks,  150 
Bernardiston,  AVatkinson  v.  81 
Bloxam  v.  Saunders,  101 
Boardman  v.  Sill,  84 
Boddington,  AVitts  v.  347 
Bowker,  Wilmshurst  v.  101 
Brittain,  Sims  v.  118 
Brown  v.  Higgs,  346 
Bullock  V.  Dommdt,  255 
Buxton  V.  Snec,  81 
Carmichael,  Wilkins  v.  81 
Carter,  Hibbert  v.  119 
Clarke,  Prevost  v.  346 
Clay  V.  Harrison,  101 
Clement,  Hoare  v.  81 
Cole  V.  Wade,  347 
Coleman,  Cruwys  v.  347 
Crawford,  Lucena  v.  250 
Croach  v.  Railway  Co.,  121 
Cruwys  v.  Coleman,  347 
Dalby  v.  Assurance  Co.,  251 
Dodd,  Aylett  V.  134 
Dommdt,  Bullock  v.  255 
Doyley  v.  Attorney- General,  347 
Dudley  v.  AVarde,  09 
Elwes  V.  Mawe,  69 
Ex  parte  Bland,  81 

Halket,  81 

Shank,  81 
Franklin  v.  Hosier,  81 
Gainer,  White  v.  84 
Garnet,  Pierson  v.  346 
Glyn,  Harding  v.  .347 
Grant  v.  Lynam,  347 
Gyles,  Woodward  v.  134 
Haine,  Payne  v.  255 
Harding  v.  Glyn,  347 


The  pages  referred  to  are  those  of  the  present  volume. 


Hare  v.  Herton,  70 
Harrison,  Clay  v.  101 
Herton,  Hare  v.  70 
Heywood,  Allwood  v.  64 
Hibbert  V.  Carter,  119 
Higgs,  Brown  v.  346 
Hoare  v.  Clement,  81 
Hosier,  Franklin  v.  81 
Houghton  V.  Matthews,  84 
Humphries,  Bell  v.  117 
Jeffries  v.  Railroad  Co.,  78 
Justin  V.  Ballam,  81 
Kruger  v.  AVilcox,  84 
La  Ysabel,  258 
Lawten  v.  Lawten,  69 
Lord  Buckhurst's  Case,  64 
Lovet  V.  Needham,  60 
Low  V.  Routledge,  321 
Lucena  v.  Crawford,  250 
Lynam,  Grant  v.  347 
Mahon  v.  Savage,  347 
Majoribanks,  Bellamy  v.  150 
Mansborough  v.  Maton,  69 
Maton,  Mansborough  v.  69 
Matthews,  Houghton  v.  84 
Maundrell  v.  Maundrell,  50 
Mawe,  Elwes  v.  69 
Milne,  Walmsley  v.  70,  73 
Mitchell,  Raitt  v.  81 
Muschamp  v.  Railway  Co.,  121 
Needham,  Lovet  v.  50 
Ottey,  Rex  v.  69 
Outhwaite,  Wentworth  v.  101 
Patterson  v.  Powell,  250 
Payne  v.  Haine,  255 
Pelt,  Robinson  v.  369 
Penistone,  Waterfall  v.  69 
Penton  v.  Robart,  69 
Peterson,  Rolfe  v.  134 
Pierson  v.  Garnet,  346 
Powell,  Patterson  v.  250 
Prevost  v.  Clarke,  346 
Railway  Co.,  Crouch  v.  121 
Jeffries  v.  78 
Muschamp  v.  121 
Scotthorn  v.  121 
Raitt  V.  Mitchell,  81 
Ray  V.  Adams,  347 


IXXX      IXDEX   TO   ENGLISH   CASES   CITED   IN   AMERICAN   NOTES. 


Rex  V.  Ottey,  69 

Robart,  Penton  v.  69 

Roberts  v.  Barker,  71 

Robinson  v.  Pelt,  369 

Rolfe  V.  Peterson,  ]34 

Routledge,  Low  r.  321 

Sargon,  Stubbs  v.  347  " 

Saunders,  Bloxam  v.  101 

Savage,  Mahon  v.  347 

Scotthorn  v.  Railway  Company,  121 

Shaw  V.  Shaw  64 

Shrewsbury  v.  The  Sloop  Two  Friends,  82 

Sill,  Boardman  v.  84 

Sims  V.  Brittain,  118 

Snec,  Buxton  v.  81 

Stubbs  V.  Sargon,  347 

The  Alexander,  81,  259 

Browmina,  81 

Emancipation,  25? 

Gratitudine,  257 

Harmonie,  81' 

Heart  of  Oak,  258 

Hero,  257 

Jane,  257 

John,  82 


The  Nelson,  257 

Neptune,  81 

Osmanli,  258 

Prince  of  Saxe  Coburg,  258 

Reliance,  257 

Rubicon,  257 

Sloop  Two  Friends,  Shrewsbury  v.  82 

Trident,  258 

Vibelia,  81,  257 

Zodiac,  81,  257 
Villiers  v.  Villiers,  50 
Wade,  Cole  v.  347 
AValmsley  v.  Milne,  70,  73 
Warde,  Dudley  v.  67 
Waterfall  v.  Penistone,  69 
Watkinson  v.  Bernardislon,  81 
Wentworth  v.  Outhwaite,  101 
Whitchurch  v.  Whitchurch,  50 
White  V.  Gainer,  84 
Wilcox,  Kruger  v.  84 
Wilkins  v.  Carmichael,  81 
Wilmshurst  v.  Bowker,  101 
Witts  V.  Boddington,  347 
Woodward  v.  Gyles,  134 
Wright  V.  Atkins,  347 


IKDEX  TO  ENGLISH  CASES  CITED. 


The  pages  referred  to  are  those  between  brackets  [     ], 


A. 


Abbot  V.  Blofield,  345 
Abbott  V.  Rogers,  197 
Abergavenny,  Earl  of,  Morgan  v.  19 
Abingdon,  Lord,  Clark  v.  103 
Acaster,  Rogers  v.  352 

Accidental  Death  Insurance  Company,  Shil- 
ling v.'160 
Ackerman,  Ex  parte,  287 
Acraman  v.  Herniman,  96 
Acton  V.  Acton,  317 
V.  White,  357 
V.  Woodgate,  274 
McNeille  v.  289 
Adam  v.  Statham,  173 

AVilkinson  v.  322 
Adams,  Malkin  v.  125 

V.  Paynter,  266 
Adcock,  Walter  v.  122 

Wood  V.  173 
Addenbrooke,  Foley  v.  280 
Addison  v.  Round,  24 
Adney,  AVennall  v.  72 
Aflalo,  Grove  v.  40 
Agar  V.  Lisle,  23 
Aitcheson  v.  Cargey,  173 
Cargey  v.  173 
Alexander  v.  Alexander,  250 

Dover  v.  322 
Alford,  Sunbolf  v.  28 
Allatt  V.  Carr,  33 
Allen,  Brown  v.  317 
Testing  V.  244 
Hobby  V.  353 
Alleyn  v.  Alleyn,  319 
Allwood  V.  Heywood,  12 
Alsager  v.  Spalding,  116 
Ambergate,  &c.,  Railway  Company  v.  Nor- 

cliffe,  193 
Ames  V.  Parkinson,  183 
Amicable  Assurance  Society  v.  Holland,  160 
Amies  v.  Skillern,  277 
Amis,  Witt  v.  300 
Amyot,  Brown  v.  241 
Anchor    Reversionary    Company,    Limited, 

Marriott  v.  56 
Anderson  v.  Coxeter,  175 

V.  Martindale,  278 
Petty  V.  353 
Price  V.  240 
An''rew  v.  Andrew,  239 
Andrews  v.  Diggs,  93 

V.  Partington,  256 
Kempe  \.  279 
Windle  v.  81 


Angerstein,  Tidswell  v.  161 
Angier  v.  Stannard,  269 
Annandale,  Brown  v.  216 
Annesley,  Macleod  v.  258 
Anon.  48,  144,  172 
Anstruther,  Ouseley  v.  183 
Antrobus,  Cuningham  v.  349 

V.  Smith,  34 
Appleby,  Pickering  v.  186 
Arbouin,  Pritchard  v.  321 
Archer  v.  Gardiner,  348 
V.  Kelly,  271 
V.  Marsh,  86 
Armistead,  De  Begnis  v.  84 
Armory  v.  Delamirie,  24,  25 
Armstrong,  Tullett  v.  356 
Arnold,  Rawsthorn  v.  175 
Ashburner,  Fletcher  v.  262 
Warden  v.  241 
V.  McGuire,  317 
Ashby  V.  Ashby,  350 
Lloyd  v.  290 
Vere  v.  290 
Ashford,  Davies  v.  263 
Ashley  v.  Ashley,  160 
Ashton  V.  Lord  Langdale,  320,  321 
Askew,  Carey  v.  296 

Newton  v.  273 
Aspinall  v.  Pickford,  29 
Aston,  Harvey  v.  341 
Atcheson,  Scarpellini  v.  347 
Atherton,  Lackington  v.  41 
Atkinson  v.  Bell,  37 

V.  Denby,  116 
Atkyns  v.  Kinnier,  67,  86 
Attenborough,  Morley  v.  369 
Attorney-General  v.  Bouwens,  309 

V.  Davies,  321 

V.  Davison,  172 

V.  Graves,  320 

T.  Hertford,  Marquis  of,  315 

V.  Hope,  309 

V.  Malkin,  244 

V.  Meyrick,  320 

V.  Tyndall,  321 

Drake  v.  310 

Glubb  V.  321 

March  v.  320 
Attwater  V.  Attwater,  317 
Attwood  v.  Munnings,  368 
Aubert  v.  Maze,  84 
Aubin  V.  Daley,  181 
Auldjo,  Wallace  v.  349 
Avery  v.  Langford,  86 

Scott  V.  166 
Axtell,  Young  v.  288 


F 


Ixxxii 


INDEX    TO   ENGLISH    CASES   CITED. 


Ayton  V.  Ayton,  323 

B. 

Badcock,  Saddlers'  Company  v.  162 
Badger,  In  re,  174: 

V.  Shaw,  47 
Bagley  v.  Mollard,  322 
Bagwell  V.  Dry,  323,  324 

Law  V.  274 
Bailey  v.  Macaulay,  292 
Snellgrove  v.  300 
Bain  v.  Lescher,  323 
Bainbridge,  Hedley  v.  291 
Bainbrigge  v.  Blair,  267 
Baine,  AVilling  v.  277 
Bainton  v.  Ward,  246 
Baker  v.  Bayldon,  349- 
V.  Bradley,  357 
V.  Henderson,  30 
Heslop  V.  51 
Leonard  v.  152 
Lyon  V.  268 
Mosley  v.  212 
Baleh  v.  Syines,  30 
Baldey  v.  Parker,  39 
Baldry,  Norman  v.  313 
Baldwin,  Ex  parte  Foss,  Re,  23S 

Lloyd  V.  264 
Balfour  v.  Ernest,  292 

V.  Welland,  264 
Balguy,  Broadhurst  v.  268 
Ball,  Caldwell  v.  59 
Bamfield  v.  Tupper,  78 
Bamford,  Brown  v.  357 
Bank  of  England,  Churchill  v.  189 
Franklin  v.  190 
Richardson  v.  195 
V.  Lunn,  188,  190 
T.  Moffatt,  190 
V.  Parsons,  190 
Banks,  Bell  v.  Ill 
Banner  v.  Lowe,  242 
Bannister,  Haley  v.  255 

Moodie  v.  372 
Banwen  Iron  Company  v.  Barnett,  197 
Barber  v.  Barber,  323 
V.  Fox,  192 
Buckley  v.  279 
Knight  V.  186,  209 
Mills  V.  79 
Barchard,  Savill  v.  29 
Barclay,  Ex  parte,  14 

V.  Wainewright,  240 
Bardell,  Rex  v.  168 
Barham,  Moor  t.  334 
Power  V.  369 
Baring  v.  Day,  28 
Barker  v.  Lea,  348 
V.  Stead,  292 
Price  V.  285 
Stamper  v.  358 
Barlow,  Errat  v.  265 
Barnard,  Earl  of  Glengall  v.  319 

Lyde  v.  79,  378 
Barnes,  Skey  v.  254 
Barnett,  Brandao  v.  29 

Banwen  Iron  Company  v.  197 


Barnett,  Van  v.  263 
Barrack  v.  McCulloch,  272 
Barrett  v.  Parry,  171 
Barrie,  Glover  v.  173 
Barrow,  Lysons  v.  307 
Barr's  Trusts,  In  re,  377 
Barry  v.  Neshara,  290 
Bartholomew,  Drybutter  v.  192 
Bartlett  v.  Bartlett,  377 
V.  Gillard,  319 
Ex  parte,  359 
'Barton  v.  Barton,  340 
V.  Briscoe,  356 
Beckton  v.  319 
Barton's  Will,  In  re,  344 
Bartrop,  Eyre  v.  110 
Barwis,  Ex  parte,  138 
Basseit,  Way  v.  286 
Bastard,  Nicholls  v.  26 
Bate,  Hunt  v.  69 
Bateman  v.  Davis,  261  • 

V.  Ross,  358 
Bates  V.  Cooke,  165 
Foster  V.  329 
Bath,  Exparte,  125 
Bayldon,  Baker  v.  349 
Baylis,  Chowne  v.  44 
Beale  v.  Beale,  250 
Bear  v.  Bromley.  196 
Beard,  Boulton  v.  269 

V.  Egerton,  218,  220 
Beaufort,  Duke  of,  Wellesley  v.  359 
Beaumont  v.  Reeve,  72 
Beavan  v.  Earl  of  Oxford,  188 
Beck,  Newton  v.  11 

Ward  V.  54 
Beckett,  Donaldson  v.  224 
Beckford,  Greening  v.  378 
Beckham  v.  Drake,  286,  289 
Beckton  v.  Barton,  319 
Beer  v.  Beer,  241 
Bell,  Atkinson  v.  37 

Bowlby  V.  209 

Hamilton  v.  50 

Hobson  v.  379 

Meux  V.  378 

Sanderson  v.  28 

V.  Banks,  111 

T.  Bidgood,  93,  98 
Bellaris,  Brown  v.  273 
Bellassis  v.  Ermine,  341 
Belton  V.  Hodges,  126 
Bendict,  Montague  v.  35S 

Seaton  v.  353 
Bennett  v.  Burton,  153 
V.  Daniel,  93 
Ex  parte,  316 
Page  V.  162 
Benning,  Sweet  v.  226 
Bensley  t.  Bignold,  84 
Benson  v.  Maude,  313 
Bentall  v.  Burn,  39 
Bentley  v.  Mackay,  273 
Benyon  v.  Maddison,  243 
Berchtoldt,  Countess  of,  Earl  of  Lonsdale  t, 

243 
Bern,  Hardy  v.  104 
Bernard,  Coggs  v.  26 


INDEX   TO   ENGLISH    CASES   CITED. 


Ixxxiii 


Bernes,  Stnnley  v.  298 
Bertiey,  West  v.  251 
Berrimaa  v.  Peacock,  18 
Berrington  v.  Evans,  99,  272 
Betts  V.  Burch,  67 

V.  Kimpton,  347 
Bevan,  Ex  parte,  287 
V.  AValters,  28 
Bewit,  Whitfield  v.  18 
Bewley,  Hancock  v.  281 
Bidden  v.  Leader,  85 
Biddlecomb  v.  Band,  149 
Bidgood,  Bell  v.  93,  98 
Biffin  V.  Yoike,  94 
Bignold,  Bensley  v.  84 
Bill  V.  Cureton,  273 
Billingsley,  Lady  Shore  v.  277 
Binks,  Harland  v.  274 
Binnington  v.  Wallis,  70,  85 
Binns,  Swallow  v.  264 
Birch,  AVatson  v.  371 
Bird  V.  Boulter,  40 

V.  Brown,  41 

V.  Gammon,  78 

V.  Ralph,  65 

Morley  v.  277,  323 
Bishop  V.  Elliott,  15 
Bishopp  V.  Colebrook,  352 
Bissett  V.  Burgess,  65 
Bittleston,  Quartermaine  v.  51 
Bittlestone,  Fenn  v.  46 
Black,  Willis  v.  271 
Blackburn,  Hobson  v.  321 
Blackburne,  Strode  v.  12 
Blacklow  V.  Laws,  355 
Blades  v.  Higgs,  21 
Blair,  Bainbridge  v.  267 
V.  Bromley,  290 
V.  Nugent,  371 
Blake,  Dundas  v.  375 
Ex  parte,  271 
V.  White,  110 
Blakelock,  Stevenson  v.  29 
Bland,  Ex  parte,  126 
Blantern,  Collins  v.  84 
Bligh  V.  Brent,  279 
Blight,  Loveacres  d.  Mudge  v.  281 
Blissett  V.  Cranwell.  281 
Blofield,  Abbott  V.  345 
Bloomer  v.  Darkes,  122 
Blount  V.  Burrow,  301 
Bloxham  v.  Sanders,  41,  43 

V.  Elsee,  220 
Blunden  v.  Desart,  30 
Blurton,  Kirk  v.  290 
Blythe  v.  GTranville,  271 
Bodly  V.  Reynolds,  43 
Bogue  V.  lloulston,  229 
Boldero,  (Jodsall  v.  160 

Lushington  v.  18 
Bolland,  Amicable  Assurance  Society  v. 

V.  Disnev,  160 
Bollett,  Burnby  v".  369 
Bond,  Biddlecombe  v.  149 

Smith  V.  103 
Boosey  v.  Jeffreys,  224,  227 
Booth  v.  Booth,  268 

Kirkman  v.  289 


160 


Booth,  Martindale  v.  46 

Whale  V.  312 
Boothby,  Morley  v.  75 
Borman,  Scarborough  v.  356 
Boss  V.  Godsall,  262 
Bot field,  Bradburne  v.  278 
Boucher,  Prescott  v.  347 
Boughton,  Knight  v.  241 

Lord  St.  John  v.  371 
Boulter,  Bird  v.  40 
Boulton  V.  Beard,  269 

V.  Bull,  218 
Bourne,  Dowbiggin  v.  109 

Hawken  v.  291 
Boutts  V.  Ellis,  300 
Bouwens,  Attorney-General  v.  309 
Bowden,  Jones  v.  369 
Bower  v.  Marris,  115 

Mexborough  v.  165 
BoT^eren,  Grymes  v.  14 
Bowes,  Countess  of  Strathmore  v.  354 
Bowker,  Wilmhurst  v.  43 
Bowlby  V.  Bell,  209 
Bewles's  C^ise,  18 
Bowman,  Mullen  v.  324 
Bowser  v.  Cox,  110 
Bowsher,  Davis  v.  29 
Boyd,  Robins  v.  138 
Boydell  v.  McMicha*!,  16 
Boyle  V.  Bishop  of  Peterborough,  249 

Ex  parte,  144 
Bracebridge  v.  Cook,  344 
Bradburne  v.  Botfield,  278 
Bradley,  Baker  v.  357 

Hampshire  v.  269 
Perkins  v.  44 
Wren  v.  358 
V.  Copley,  24,  46 
Bradsey  v.  Clyston,  171 
Bradshaw,  Custance  v.  279 
Yeoman  v.  105 
Bradyl,  Burridge  v.  318 
Braithwaite  v.  Britain,  286 

V.  Skinner,  6 
Bramah  v.  Roberts,  291 
Brandao  v.  Barnett,  29 
Brander  v.  Brander,  240 
Brandon  v.  Robinson,  356 
Brathwait,  Lampleigh  v.  69 
Breary,  Roundel]  v.  272 
Bremridge,  Evans  v.  256,  285 
Brent,  Bligh  v.  279 
Brereton,  Drosier  v.  258 
Brett  v.  Greenwell,  348 
Brewin  v.  Short,  141 
Briant,  Philpot  v.  Ill 
Brice  v.  Stokes,  268 
Bridge  v.  Bridge,  273 
V.  Cage,  86 
V.  Yates,  277 
Bridges,  Etty  v.  379 

V.  Hawksworth,  25 
Brierley  v.  Kendall,  46 
Briggs  V.  Chamberlain,  353 
Bright  v.  Ilutton,  293 

Jones  V.  369 
Bright's  Tf  usts,  377 
Briscoe,  Barton  v.  356 


Ixxxiv 


INDEX    TO   ENGLISH   CASES   CITED. 


Briscoe,  Ilanchett  v.  352 

Brise,  Matthews  v.  258 

Bristead  v.  Wilkins,  189 

Bristol   and   Exeter   Railway    Company, 

Coombes  v.  39 
Bristowe  v.  Ward,  250 
Britain,  Braithwaite  v.  286 
British  Empire  Shipping  Company  v.  Somes, 

28 
Broadhurst  v.  Balguy,  268 
Brocklebank,  Stocker  v.  290 
Bromage  v.  Lloyd,  81 
Bromhead,  Wilkins  v.  37 
Bromley,  Bear  v.  196 
Blair  v.  290 
Brooke  v.  Enderby,  288 

T.  Mitchell,  24,  170,  171 
Brookes,  Ex  parte,  128 
Brooks  V.  Keith,  271 
Broom  v.  Broom,  279 
Broughton  t.  Broughton,  268 
Brown  v.  Allen,  317 
V.  Amyott,  241 
V.  Annandale,  216 
T.  Bamford,  357 
T.  Bellaris,  273 
T.  Edgington,  370 
V.  Lee,  110 
T.  Poeock,  356 
T.  Vawser,  179 
V.  Weatherby,  286 
Bird  V.  41 
Collins  Co.  V.  234 
Pflegar  v.  114,  116 
Jennings  v.  70 
Metropolitan    Counties,    Ac.    Society 

V.  14 
Richardson  v.  369 
Wakefield  v.  278 
Browne  v.  Cavendish,  274 

V.  Savage,  378 
Brownlow,  Nixon  v.  194 
Brownrigg,  Bryson  v.  301 
Brownsmith,  Wilson  v.  318 
Brumridge  v.  Brumridge,  269 
Bruning,  Smith  v.  341 
Bryan  v.  Child,  96 
T.  Clay,  65 
Hemsworth  v.  170 
Bryans  v.  Nix,  35 
Bryant,  Hollis  v.  150 

Laythoarp  v.  77 
Bryce,  Cannan  v.  82,  88 
Bryson  v.  Brownrigg,  301 
Buchanan,  Fleming  v.  246 
Buck,  Sutton  V.  26 
Buckhursfs  Case,  10 
Buckingham,  Earl  of,  v.  Drury,  343 
Buckland  v.  Johnson,  43 
Buckley  v.  Barber,  279 

Earl  of  Stafford  v.  181 
Ex  parte,  290 
Buckley's  Trust,  270 
Bull,  Boulton  V.  218 
V.  Faulkner,  30 
Bunn  V.  Markham,  301 
Burch,  Betts  v.  67 
Burdiss,  Carr  v.  35  * 


Burford,  Dix  v.  268 
Burge,  Heyhoe  v.  290 
Burgess,  Bissett  v.  65 

Tappenden  v.  117 
Williams  v.  96 
Burghart,  Lane  v.  76 
Burke  v.  Jones,  375 
Burley,  Gilly  v.  240 
Burn,  Bentall  v.  39 
V.  Burn,  291 
Burnby  v.  Bollett,  369 
Burnell,  Gale  v.  32,  46 
Burnet  v.  Mann,  333 
Buri-idge  v.  Brady],  318 
Burrough  v.  Moss,  345 
Burrow,  Blount  v.  301 
Burrowes,  Stuart  v.  306 
Burton,  Bennett  v.  153 
Goode  V.  11 
V.  Hughes,  27 
Bury,  Petrie  v.  276 
Busii,  Hart  v.  39 

V.  Shipman,  116 
Bushell  V.  Wheeler,  38 
Busk  V.  Davis,  37 

Pickering  v.  368 
Butcher  v.  Butcher,  271 
V.  Jackson,  252 
Butler,  Falkner  v.  250 
Butterfield,  In  re,  289 
Byers,  Wilkinson  v.  114 
Byng  V.  Lord  Strafford,  242 
Byrne,  Ward  v.  86 
Byron  v.  Byron,  73 
Bywater,  Wrightson  v.  173 


Cadogan  v.  Earl  of  Essex,  262 

Cage,  Bridge  v.  86 

Caldwell  v.  Ball,  69 

Calvert  v.  London  Dock  Company,  110 

Camm,  Goulder  v.  357 

Campbell  v.  Campbell,  268 

V.  Home,  251 

Macarthur  v.  175 
Campion  v.  Cotton,   70 
Candish,  Wilkinson  v.  125 
Cannan  v.  Bryce,  84,  88 
Cannings  v.  Flower,  255 
Careless,  Raehfield  v.  324 
Carew,  Clive  v.  356 
Carey  v.  Askew,  296 
Collins  V.  267 
Cargey  v.  Aitcheson,  173 

Aitcheson  v.  173 
Carlisle.  Earl  of  Leehmere  v.  263 
Carpenter  v.  Smith,  216 

Tebbs  V.  183 
Carr,  AUatt  v.  33 

V.  Burdiss,  35 
Carrick,  Freshney  v.  46 
Carrington,  Ex  parte,  125 
Carruthers,  Parkin  v.  288 
Carstairs,  Ex  parte.  111 

Maltby  v.  Ill 
Carter  r.  Crick,  369 

V.  Taggart,  241,  349 


INDEX   TO   ENGLISH   CASES   CITED. 


Ixxxv 


Carter  v.  Whalley,  288 
Cartwright  v.  Cartwright,  357 

V.  Vawdry,  322 
Carver,  Waugh  v.  289,  291 
Case,  Hartley  v.  82 

South  Carolina  Bank  v.  291 
Cassell,  In  re,  177 

V.  Stiff  232 
Castle  V.  Sworder,  39 
Castrique,  Ilderton  v.  122 
Caulfield  v.  Maguire,  109 
Cautley,  Foster  v.  248 
Cave  V.  Cave,  16 

V.  Roberts,  336 
Farquharson  v.  301 
Cavendish,  Browne  v.  274 
Chadwick  v.  Doleman,  250 
Chaloner,  Horsley  v.  315 
Chamberlain,  Briggs  v.  353 

V.  Williamson,  63 
Chambers,  Willett  v.  290 
Champernown  v.  Scott,  30 
Champneys,  Sturgis  v.  348 
Chandler,  Kensington  v.  273 
•  Channon  v.  Patch,  18 
Chanter  v.  Hopkins,  369 
Chaplin,  Ex  parte,  258 
V.  Rogers,  34 
Chapman,  Howse  v.  220 
May  V.  82 
Nicholson  v.  28 
V.  Milvain,  196 
Charlesworth,  Malcomb  v.  349 
Chase,  Goodman  v.  75 
Cherry  v.  Hemming,  76 
Cheslyn  v.  Dalby,  78 
Cheyne,  Eccles  v.  324 
Chichester,  Smith  v.  30 
Chidell  V.  Galsworthy,  33 
Chilcote  V.  Kemp,  122 
Child,  Bryan  v.  96 

V.  Morley,  185 
Chiswell,  Gray  v.  286 
Chitty,  Hulme  v.  358 
Chollett  V.  Hoffman,  224 
Cholmeley  v.  Paxton,  18 
Chowne,  Baylis  v.  44 
Churchill  v.  Bank  of  England,  189 

V.  Small,  12 
Churchward  v.  Studdy,  21 
City  of  London  Steam  Packet  Company,  Fen- 
ton  V.  58 
Clancy  v.  Piggott,  75 
Clare,  Ridgway  v.  286 
Claridge,  Hollis  v.  30 
Clarke  v.  Lord  Abingdon,  103 
V.  Parker,  341 
V.  Seton,  103 
V.  Shee,  365 
Groves  v.  349 
In  re,  290 
Rawlinson  v.  290 
Smith  V.  81 
Clarkson,  Wild  v.  103 
Clay,  Bryan  v.  65 
Clayton  v.  Kyna.ston,  282,  284,  285 
Cleave  v.  Jones,  78 
Clegg  v.  Clegg,  271 


Clift  V.  Schwabe,  160 
Clive,  Carew  v.  356 
Close  V.  Close,  111 

V.  Waterhouse,  29 
Clough  V.  French,  101 

V.  Lambert,  358 
Clulow,  In  re,  241 
Clyston,  Bradsey  v.  171 
Cobb,  Rishton  v.  340 
Cock,  Lashbrook  v.  281 
Cockburn,  Daubney  v.  251 
Cocksedge  v.  Cocksedge,  357 
Coggs  V.  Bernard,  26 
Coker,  Hitchcock  v.  86 
Colbeck,  In  re,  389 
Cole,  Kearsley  v.  285 

Kerrison  v.  85 
Colebrook,  Bishopp  v.  352 
Colegrave  v.  Bias  Santos,  14 
Collectors  of  Customs,  Rex  v.  279 
Collett,  Meryon  v.  244 

V.  Morrison,  161 
Collins  V.  Blantern,  84 
V.  Carey,  267 
V.  Collins,  177 
V.  Martin,  82 
Drew  V.  122 
Hobby  V.  353 
Lowndes  v.  108 
Company  v.  Brown,  234 
Collinson,  Holderness  v.  29 
Colne  Valley  and  Halstead  Railway,  In  re,  261 
Colvin,  Wilton  v.  271 
Combe,  Ward  v.  240 
Compton,  Peter  v.  76 

Right  d.  Compton  v.  341 
Conduitt  V.  Soane,  238 
Congreve,  Douglas  v.  271 

V.  Evetts,  33 
Cook,  Bracebridge  v.  344 

V.  Wright,  70 
Cooke,  Bates  v.  165 
V.  Fuller,  360 
V.  Whorwood,  173 
Cookson  V.  Cookson,  279 

V.  Reay,  263 
Coombs  V.  Bristol  and  Exeter  Railway  Com- 
pany, 39 
Coope  V.  Twyman,  110 
Cooper,  Davidson  v.  83 
Edwards  v.  272 
Loveridge  v.  377,  378 
Rust  V.  144 
v.  Johnston,  170 
V.  Shepherd,  43 
V.  Willomatt,  27 
V.  Woolfit,  17 
Cope  V.  Rowlands,  84 
Copeland,  Morton  v.  226 
Copis  V.  Middleton,  109 
Copley,  Bradley  v.  24,  46 
Coppin,  Dillon  v.  34,  70 
Corbet,  Ewer  v.  312 
Corbitt,  White  v.  138 
Cordell,  Elliott  v.  350 
Corles,  Dipple  v.  69 
Cornforth  v.  Smithard,  72 
Cornthwaite,  Frith  v.  274 


Ixxxvi 


INDEX   TO   ENGLISH    CASES   CITED. 


Cornwallis,  Las?ells  v.  246 
Corporation  of  Liverpool,  Scott  v.  166 
Cotton,  Campion  v.  70 
Coventry  v.  Coventry,  266 

Lord,  Lygon  v.  257 
Cowell  V.  Simpson,  29,  31 
Cowper,  Hutton  v.  98 
Cox,  Bowser  v.  1 10 
Coxeter,  Anderson  v.  175 
Craddock,  Lake  v.  279 
Cradock  v.  Piper,  268 
Craig,  Downes  v.  65 
Crallan  v.  Oulton,  375 
Cramer  v.  Moore,  271,  281 
Cranefeld,  Freake  v.  374,  375 
Cranley  v.  Hillary,  116 
Cranmer's  Case,  319 
CranvFell,  Biissett  v.  281 
Craythorne  v.  Swineburn,  110 
Creed  v.  Perry,  352 
Cresswell,  Green  v.  75 
Creswick  v.  AVoodhead,  303 
Crick,  Carter  v.  369 
Cristall,  Ferguson  v.  24,  27 
Crofts,  Elves  v.  86 
Crofton  v.  Poole,  147 
Crompe,  Martin  v.  279 
Crosby  v.  Crouch,  144 
Crossfield  v.  Stanley,  98 
Crosskey,  European,  Ac.  Shipping  Co.  v.  177 
Crossley  v.  Dobson,  283 
Crouch,  Crosby  v.  144 
Croydon  Canal  Co.,  Hodges  v.  372 
Cruger  v.  Dunlop,  122 
Cruise  v.  Hunter,  359 
Cubitt,  Stansfeld  v.  47 
Cullingworth  v.  Lloyd,  116 
Cumber  v.  Wane,  114 
Cunningham  v.  Antrobus,  349 
Cunynghame  v.  Thurlow,  252 
Cureton,  Bill  v.  273 
Curling  v.  Flight,  380 
Curry,  Wilmer  v.  283 
Cusack  V.  Robinson,  38 
Custance  v.  Bradshaw,  279 
Cutbush  V.  Cutbush,  289 
Cuthbert  v.  Dobbin,  94 
Cutler,  In  re,  348 
Cutten  V.  Sanger,  273 

D. 

Dabbs,  Ford  v.  151 
Dalby,  Che.=lyn  v.  78 

V.  India  and  London  Life  Assurance 
Company,  161 
Dale,  Drayton  v.  147 
Dalton,  In  re,  342 
Daly,  Aubin  v.  181 
Dalzell,  Lynch  v.  162 
Daniel,  Bennett  v.  93 

Kirwan  v.  274 

V.  Dudley,  244 
Darby  v.  Darby," 2 79 
Darell,  Hales  v.  319 

Sturgis  V.  374 
Darkes,  Bloomer  v.  122 
Dartmouth,  Lord  Howe  v,  183 


Darton,  Moore  v.  300 
Daubeny  v.  Cockburn,  251 
Davenport,  Elliot  v.  243,  323 

Ex  parte,  35 
Davids,  Jones  v.  109 
Davidson  v.  Cooper,  83 
Ex  parte,  227 
Davies  v.  Ashford,  263 

V.  Humphreys,  110 
v.  Penton,  67 
V.  Stainbank,  110 
V.  Vernon,  10,  12,  29 
Attorney-General  v.  321 
Davis,  Bateman  v.  261 
Busk  V.  37 
Godfrey  v.  322 
Shepley  v.  37 
V.  Bowsher,  29 
V.  Earl  of  Dysart,  12 
V.  Johnston,  53 
V.  Mason,  86 
Davison,  Attorney- General  v.  172 
Dawes  v.  Peck,  39,  42 
Dawson  v.  Kearton,  71 

Pearson  v.  35,  39  • 

Day,  Baring  v.  28 
Hulkes  V.  188 
AVallis  V.  86 
Deakle,  Pain  v.  171 
Dean  v.  Hogg,  68 
Dearie  v.  Hall,  377,  378 
De  Begnis  v.  Armistead,  84 
De  Castro,  Willis  v.  285 
Dedire,  Freemoult  v.  272 
Deeks  v.  Strutt,  6 
Deering  v.  Earl  of  Winchelsea,  109 
Delamirie,  Armory  v.  24,  25 
De  la  Grouee,  Hambidge  v.  291 
De  la  Garde  v.  Lempriere,  349 
De  Mattos,  De  Pothonier  v.  112 
De  Mautort  v.  Saunders,  286 
Denby,  Atkinson  v.  116 
Denny,  Flory  v.  36 
De  Pass,  Lyons  v.  366 
De  Pothonier  v.  De  Mattos,  112 
De  Proven,  Dupleix  v.  99 
Desanges,  Thomas  f.  141 
Desbrisay,  Fearon  v.  252 
Desart,  Blundeu  v.  30 
Detastet,  Ex  parte,  287 
Devaynes  V.  Noble,  115,  286 
Devereux  v.  Kilkenny,  &c.  Railway  Co.,  193 
Dewdney,  Ex  parte,  374 
Dewhurst  v.  Kershaw,  122 
Dias  Santos,  Colegrave  v.  14 
Dickie,  Gibson  v.  70 
Dickinson  v.  Kitchen,  56 
V.  Teesdale,  375 
V.  Valpy,  291 
Orr  V.  57 
Diggs,  Andrews  v.  93 
Dillon  V.  Coppin,  34,  70 
Dimsdale  v.  Robertson,  171 
Dipple  V.  Corles,  69 
Disney,  Bolland  v.  160 
Dix  V.  Burford,  268 
Dixie,  Wood  v.  49 
Dixon,  Fisher  v.  15 


INDEX   TO   ENGLISH    CASES   CITED. 


Ixxxvii 


Dixon   V.  Yates,  35,  41 ,  42 
Dobbin,  Cutbbert  v.  94 
Dobree,  Ruddell  v.  301 
Dobson,  Crossley  v.  283 
Dodd,  Lewen  v.  281 
Olddeld  V.  131 
Doe  d.  Esdaile  v.  Mitchell,  141 
d.  Morrison  v.  Glover,  212 
d.  Stace  v.  Wheeler,  303 
Doleman,  Chadwicli  v.  250 
Dolland,  Kensington  v.  355 
Dominy,  Thompson  v.  59 
Donaldson  v.  Becket,  224 

V.  Donaldson,  273 
Doncaster  v.  Doncaster,  242 
Donellan  v.  Reid,  76 
Deran  v.  Wiltshire,  264 
Dorien,  Lucas  v.  35 
Dorrill,  Routledge  v.  251,  252 
Douglass  V.  Congreve,  271 

V.  Russell,  59 
Dover  v.  Alexander,  322 
Dowbiggen  v.  Bourne,  109 
Dowling,  Wade  v.  173 
Downes,  Ex  parte,  139 

V.  Craig,  65 
Downman,  Motley  v.  235 
Downs,  England  v.  354 
Dowson,  Pickering  v.  369 
Drake  v.  Attorney-General,  310 

Beckham  v.  286,  289 
Drayton  v.  Dale,  147 
Drew  V.  Collins,  122 
Driver  v.  Mawdesley,  274 

V.  Scott,  269 
©rosier  v.  Brereton,  258 
Drummond,  Evans  v.  288 

McCleod  V.  312 
V.  Parish,  296 
Drury,  Earl  of  Buckingham  v.  343 

V.  Scott,  271 
Dry,  Bagwell  v.  323,  324 
Drybutter  v.  Bartholomew,  192 
Dubost,  Ex  parte,  34 

Morrell,  v.  93 
Dudley,  Daniel  v.  244 

V.  Warde,  15 
Dufaur,  Ex  parte,  125 
Duff  V.  East  India  Company,  290 

Gordon  v.  317 
Duffield  V.  Elwes,  300 
DufiFy's  Trust,  In  re,  350 
Duke,  Samuel  v.  366 

Sheppard  v.  371 
Duncan  v.  Topham,  77 
Dundas  v.  Blake,  375 

V.  Dutens,  188 
Dungannon,  Lord  Ker  v.  238 
Dunkley  v.  Dunkley,  348 
Dunlop,  Cruger  v.  122 

V.  Higgins,  77 
Dunnieliffv.  Mallet,  281 
Duplex  V.  De  Proven,  99 
Durant,  James  v.  271 

V.  Prestwood,  333 
Durnford  v.  Lane,  342 
Dutens,  Dundas  v.  188 
Dutton  v.  Morrison,  117 


Dyke  v.  Walford,  327 
Dykes,  Tolson  v.  155 
Dysart,  Earl  of,  Davis  v.  12 

E. 

Eads  v.  Williams,  173 
Eardly  V.  Owen,  371 
Earle,  Heinekey  v.  42 

Mare  v.  116 
East  India  Co.,  Duflf  v.  290 

Murray  v.  374 
Venables  v.  304 
Eastwood  V.  Kenyon,  69,  72 
Eccles  v.  Cheyne,  324 
Ede,  Mitchell  v.  35 
Edelston  v.  Vick,  235 
Edgeberry  v.  Stevens,  218 
Edgington,  Brown  v.  370 
Edmonds,  Goodtitle  d.  Richards  v.  243 

V.  Low,  318 
Edsun,  Smarte  v.  283 
Edwards  v.  Cooper,  272 
V.  Freeman,  330 
V.  Hall,  320 
V.  Harben,  45 
V.  Janes,  76 
V.  Jones,  34,  273,  301 
V.  Searsbrook,  97 
V.  Countess  of  Warwick,  242 
Egerton,  Beard  v.  218,  220 
Elibank,  Lady  v.  Montolieu,  348 

Lord,  Murray  v.  348,  349 
Elliott,  Bishop  v.  15      • 
v.  Cordell,  350 
v.  Davenport,  243,  323 
V.  Merriman,  312 
Ellis,  Boutts  V.  300 
v.  Nimmo,  70 
Ellison  V.  Ellison,  34,  273 
V.  Elwin,  342,  350 
Lyddon  v.  250 
Elsee,  Bloxham  v.  220 
Elton,  Ex  parte,  286 
Elves  V.  Crofts,  86 
Elvey  V.  Norwood,  373 
Elwes,  Duffield  v.  300 

Forrest  v.  183,  269 
V.  Maw,  14 
Elwin,  Ellison  v.  342,  350 
Enderby,  Brooke  v.  288 
England  v.  Downes,  354 
Equitable  Reversionary  Interest  Society  v. 

Fuller,  260 
Ermine,  Bellasis  v.  341 
Ernest,  Balfour  v.  292 
Errat  v.  Barlow,  255 
Erskine's  Trust,  348 
Espinasse,  Petre  v.  273 
Essex,  Earl  of  Cadogan  v.  262 
Ettricke  v.  Ettrieke,  281 
Etty  V.  Bridges,  379 
European  Co.  v.  Royal  Mail  Co.,  56 
European,  Ac,  Shipping  Co.  v.  Crosskey,  177 
Evans,  Berrington  v.  99,  272 
Field  V.  357 
Legg  V.  24,  30,  46 
Shaw  V.  93 


Ixxxviii 


INDEX    TO   ENGLISH    CASES   CITED. 


Evans  v.  Bremridge,  285 

T.  Drummond,  288 

V.  Scott,  254 

Williams  v.  14 
Everard  v.  Poppleton,  95 
Everett,  Eyre  v.  11 J 
Evetts,  Congreve  v.  33 
Ewer  V.  Corbett,  312 
Eyre  v.  Bartrop,  110 
V.  Everett,  111 
Holland  v.  77 
Eyres  v.  Faulkland,  238 
Eyton,  Pott  v.  290 

F. 

Falkner  v.  Butler,  250 

Farebrother  v.  Simmons,  40 

Farina  v.  Home,  39 

Farmer  V.  Smith,  212 

Sparrow  v.  212 

Farnell,  Kiddill  v.  368 

Farquhar,  McQueen  v.  251 

Farquharson  v.  Cave,  301 

Farr,  Meredith  v.  322 

Farrant  v.  Thompson,  16 

Farren,  Kenible  v.  07 

Farrow  v.  Mayes,  96 

Faulder,  Harper  v.  12 

Faulkland,  Eyres  v.  238 

Faulkner,  Bull  v.  30 

Fearnhead,  Knatchbull  v.  313 

Fearon  v.  Desbrisay,  252 

Fenn  v.  Bittlestone,  46 

Fenton  v.  City  of  London  Steam  Packet  Com- 
pany, 58 

Fenton,  Trueman  v.  72 

Fenwick  v.  Greenwell,  269 

Ferguson  v.  Cristall,  24,  27 

Sainter  v.  67 
Fergusson  v.  Norman,  84 

Fernie,  Hodgkinson  v.  174 

Fesenmeyer,  Johnson  v.  126 
Festing  v.  Allen,  244 
Fetherston  v.  Hutchinson,  85 
Fettiplace  v.  Gorges,  354 
Fidgeon,  Laing  v.  370 
Field  V.  Evans,  357 
Northey  v.  42 
Yea  V.  1 0 
Fielder,  Proudley  v.  355 
Finney,  Foden  v.  348 
Firmin  v.  Pulham,  268 
Fisher  v.  Dixon,  15 

T.  Pimbley,  173 
Fitch  V.  Sutton,  114 
Fitzer  v.  Fitzer,  358 
Fleming  v.  Buchanan,  246 

V.  Self,  212 
Fletcher  v.  Ashhurner,  262 
V.  Fletcher,  359 
Leehmere  v.  78 
Flight,  Curling  v.  380 
Flintoff,  Horner  v.  67 
Flory  V.  Denny,  36 
Flower,  Cannings  v.  255 
Foden  v.  Finney,  348 
Foley  V.  Addenbrooke,  278 


Foley,  Paget  v.  373 
Foljambe,  Ogilvie  v.  76 

V.  Willoughby,  257 
Fooks,  Pride  v.  183,  269 
Foote,  Woods  v.  122 
Ford  V.  Dabbs,  151 
v.  Jones,  177 
V.  Peering,  12 
Fordham  v.  Wallis,  78 
Fordwich  (Mayor  of),  Tomlin  v.  173 
Fores  v.  Johnes,  86 
Forrest  v.  Elwes,  183,  269 
Foss,  Ex  parte.  Re  Baldwin,  233 
Foster  v.  Bates,  329 

V.  Cautley,  248 
V.  Pearson,  365 
V.  Weston,  108 
Fourdrin  v.  Gowdey,  318,  319 
Fowler  v.  Fowler,  318 
Marshall  v.  348 
Fox,  Barber  v.  102 
Freakley  v.  303 
Webb  V.  147 
V.  Smith,  173 
Francis  v.  Grover,  372 

V.  Hawkesley,  72 
Viner  v.  323 
Franklin  v.  Bank  of  England,  190 
V.  Hosier,  28 
V.  Neate,  26 
Franks,  Ex  parte,  125 
Fraser,  Mather  v.  14,  47 
V.  Palmer,  267 
V.  Thompson,  70 
Freake  v.  Cranefeldt,  374,  375 
Freakley  v.  Fox,  303 
Frecker,  Norton  v.  374 
Freeman,  Ex  parte,  287 

Edwards  v.  330 
Freemoult  v,  Dedire,  272 
French,  Clough  v.  101 
Ex  parte,  259 
Frere,  Thomason  v.  280 
Freshney  v.  Carrick,  46 
Friar,  Grey  v.  104 
Frith  V.  Corntbwaite,  274 
Frost,  Williams  v.  215 
Frowd,  Moore  v.  267 
Fry,  Ex  parte,  287 
Fryatt,  Reid  v.  171 
Fuller,  Cooke  v.  360 

Equitable  Reversionary  Interest  So- 
ciety V.  260 
Furber,  Graham  v.  141 
Furniss  v.  Leicester,  369 

G. 

GafFee,  In  re,  356 
Gale  V.  Burnell,  32,  46 

V.  Walsh,  81 

Griffiths  V.  324 
Galsworthy,  Chidell  v.  33 
V.  Strutt,  67 
Gambart  v.  Sumner,  229 
Gammon,  Bird  v.  78 
Gardiner,  Archer  v.  348 
Gardner  v.  Marshall,  348 


INDEX   TO   ENGLISH    CASES   CITED. 


Ixxxix 


Gardom,  Ex  parte,  290 
Garland,  Ex  parte,  289 
Garner  v.  Hannyngton,  12 
Garnett,  Pierson  v.  250 
Garrard  v.  Lord  Lauderdale,  274 
Gaskell  v.  King,  S5 
Gaters  v.  Madeley,  347 
Gatty,  Phillipson  v.  258 
Gaylor,  Howell  v.  244 
Gaze,  Love  v.  325 
Gee  V.  Gurney,  252 
Geldard,  Robinson  v.  322 
Gent  V.  Harris,  348 
Gery,  Humfrey  v.  372,  373 
Gibbeson,  Greenham  v.  261 
Gibbon,  Kempe  v.  372 

Gibbons  v.   Northeastern  Metropolitan  Asy- 
lum District,  77 
Gibbs,  Lindsay  v.  59 
Gibson  v.  Dickie,  70 
Gifford,  Ex  parte,  110,  285 

Nugent  V.  312 
Gilbert  v.  Lewis,  355 

Richardson  v.  226 
Giles,  Walker  v.  212 
Gilkes  V.  Leonine,  77 
Gill,  In  the  Goods  of,  328 

V.  Shelley,  322 
Gillard,  Bartlett  v.  319 
Gilly  V.  Burley,  240 
Giraud,  Hilton  v.  320 
Girdlestone,  Watts  v.  183,  269 
Gleaves  v.  Paine,  348 
Glendinning,  Ex  parte,  116 
Glengall,  Earl  of,  v.  Barnard,  319 
Gloucester,  Corporation  of,  Trye  v.  321 
Glover  v.  Barrie,  173 

Morrison  v.  211,  212 
Glubb  V.  Attorney-General,  321 
Glyn  V.  Thorpe,  ioO 
Glynn,  Morris  v.  320 
Goddard,  Pedley  v.  175 
V.  Snow,  354 
Godden,  Ex  parte,  122 
Godfrey  v.  Davis,  322 

V.  Turnbull,  288 
Godsall  V.  Boldero,  160 

Boss  V.  262 
Goldsmid  v.  Goldsmid,  251 
Gomley  v.  Wood,  267 
Gomme,  Hill  v.  313 
Good  v.  Burton,  11 
Goodman  v.  Chase,  75 

V.  Harvey,  365 
Goodtitle  d.  Richards  v.  Edmonds,  243 
Gordon  v.  Dutf,  317 

V.  Gordon,  322 

V.  Harper,  24,  27 

Norcott  V.  318 
Gorges,  Fettiplace  v.  354 
Gould,  Weldon  v.  23 
Goulder  v.  Camm,  357 
Gouthwaite,  Ex  parte,  128 
Gowdey,  Foudrin  v.  318,  319 
Grace  v.  Smith,  289 

Webb  V.  341 
Grafftey  v.  Hurapage,  244,  271 
Graham  v.  Furber,  141 


Graham  v.  Graham,  318 

V.  Londonderry,  345 
Grane,  White  v.  257 
Grant  v.  Grant,  103 

V.  Vaughan,  365 
Routledge  v.  77 
Grantham  v.  Hawley,  32 
Granville,  Blythe  v.  271 
Graves,  Attorney  General  v.  320 

v.  Weld,  17 
Gray  v.  Chiswell,  286 

V.  Limerick,  Earl  of,  250 
v.  Mathias,  85 
Hind  v.  86 
Irving  V.  122 
Great  Northern  Railway  Co.,  Pym  v.  62 
Great  Western  Railway  Co.,  Rouch  v.  141 
Greaves  v.  Hepke,  35 

Shuttleworth  v.  317 
Steward  v.  196 
Greedy  v.  Lavender,  351 
Green  v.  Cresswell,  75 
V.  Price,  85,  87 
Hardy  v.  271 
In  re,  314 
Price  V.  67 
Greenham  v.  Gibbeson,  261 
Greenhill,  Rex  v.  359 
Greening  v.  Beckford,  378 
Green's  Patent,  224 
Greenwell,  Brett  v.  348 

Fenwick  v.  269 
V.  Greenwell,  255 
Greenwood's  Case,  198 
Greese,  Richardson  v.  319 
Gresham,  Wiles  v.  261 
Gregory,  Heckscher  v.  185 
Grey  v.  Friar,  104 
V.  Stuart,  271 
GrifBn,  Bishop  of  Hereford  v.  226 
Lee  V.  40 
Thompson  v.  256 
Griffith  V.  Ricketts,  262,  274 
Griffiths  V.  Gale,  324 
Grimes  v.  Harrison,  212 
Grove  v.  Afialo,  40 
Grover,  Francis  v.  372 

Whittingstall  v.  286 
Groves  v.  Clarke,  349 

V.  Perkins,  349 
Grymes  v.  Boweren,  14 
Stratton  v.  341 
Guedalla,  Montefiore  v.  319 
Gunn,  Powle  v.  69,  186 
Gurney,  Gee  v.  252 
Guthrie,  Ilewison  v.  31 

Leslie  v.  59 
Gutteridge,  Simmons  v.  303 
Guy,  Styles  v.  268 


H. 


Haddan,  Mason  v.  166 

Hadfield,  Rashforth  v.  29 

JIaigh,  Howdon  V.  116 

Hale  V.  Saloon  Omnibus  Company,  49 

Hales  V.  Darell,  319 

Halesham  v.  Young,  290 


xc 


INDEX    TO   ENGLISH   CASES    CITED. 


Haley  v.  Bannister,  255 
Halford  v.  Kymer,  161 
Hall,  Dearie  V.  377,  378 
Edwards  v.  320 
Heath  v.  1 1 1 
Moss  V.  110 
Pinkney  v.  290 
Reynolds  v.  50 
Stanton  v  350 
V.  Hardy,  178 
V.  Hewer,  250 
V.  Hugonin,  352 
V.  Lawrence,  177 
V.  Norfolk  Estuary  Company,  193 
V.  Palmer,  85 
V.  Potter,  341 
Hallewell,  Hawker  v.  87 
Halliday,  Streatfield  v.  284 
Halthin,  Steinmitz  v.  349 
Hambidge  v.  De  La  Crouee,  291 
Hames  v.  Hames,  244 
Hamilton  v.  Bell,  50 

V.  Kirwan,  251 
Hammond  v.  Hammond,  271 
Hamper,  Ex  parte,  290 
Hampshire  v.  Bradley,  269 
Hanbury  v.  Kirkland.  268 
Hanchett  v.  Briscoe,  352 
Hancock  v.  Bewley,  281 

V.  Heywood,  280 
Hanfortb,  Howell  v.  241 
Hannyngton,  Garner  v.  12 
Hanrott,  Wombwell  v.  248,  249 
Hansen  v.  Keating,  348 

V.  Meyer,  37 
Harben,  Edwards  v.  45 
Harcourt  v.  Ramsbottom,  172 
Hardey  v.  Green,  271 
Hardy  v.  Bern,  104 

Hall  V.  178 
Hare  v.  Horton,  14 

Hyat  V.  290 
Harewood,  Lord,  Milner  v.  342 
Harford,  Neilson  v.  220 
Harland  v.  Binks.  274 
Harley  v.  Harley,  352 
Harmer  v.  Westmacott.  233 
Harnett  v.  Macdougall,  357 
Harper  v.  Faukler,  12 

Gordon  v.  24,  27 
Harrington  v.  Price.  10 
Harris,  Ex  parte,  286 
Gent  V.  348 
V.  Llovd,  152,  322 
V.  AVall,  73 
Harrison,  Grimes  v.  212 
V.  Jackson,  291 
•  V.  Paynter,  113 
Harrobin,  Pole  v.  84 
Harrop  v.  Howard,  357 
Hart  V.  Bush.  39 

V.  Stephens,  347 
Hartford  v.  Jones,  28 
Hartley  v.  Case,  82 
Hartnoll,  Cripps  v.  75 
Harvey  v.  Aston,  341 

Goodman  v.  365 
Haslam,  Nickels  v.  220 


Hasleham  v.  Young,  290 
Hassell  V.  Hawkins,  319 
Hastings,  Lord,  Scott  v.  188 
Hawken  v.  Bourne,  291 
Hawker  v.  Hallewell,  87 
Hawkes  v.  Ilollingsall,  153 
Hawkesworth,  Bridges  v.  25 

Wolverhampton  New  Water- 
works Company  v.  193 
Hawkins,  Hassell  v.  319 
Hawley,  In  re,  177 

Grantham  v.  32 
Haworth,  Meyer  v.  72 
Hay,  Ex  parte,  287 
V.  Palmer,  241 
Hayes  v.  Hayes,  317 
Haygarth,  Taylor  v.  336 
Hayley,  Hope  v.  33 
Hayter  v.  Tucker,  320 
Hayward,  Williams  v.  212 
Head,  March  v.  348 
Headington,  Holloway  v.  70 
Heard  v.  Stamford,  353 
Heath  V.  Hall,  111 
V.  Key,  110 
V.  Lewis,  341 
Heather,  Richards  v.  283 
Heavar,  Manser  v.  173 
Heeht,  Hunt  v.  38 
Heckscher  V.  Gregory,  185 
Hedley  v.  Bainbridge,  291 
Heinekey  v.  Earle,  42 
Hellicar,  Powell  v.  301 
Helme  v.  Smith,  53 
Hembrow,  Prior  v.  170 
Heming,  Cherry  v.  76 

V.  Swinnerton,  168 
Hemsworth  v.  Bryan,  170 
Henderson,  Baker  v.  30 

Wilkinson  v.  286 
Heneage  v.  Hunloke,  250 
Henning,  Whittle  v.  352 
Henshaw,  Williams  v.  277 
Hensloe's  Case,  303 
Hepke,  Greaves  v.  35 
Hereford,  Bishop  of,  v.  Griffin,  226 
Herlakenden's  Case,  16,  18 
Herniman,  Acraman  v.  96 
Hertford,  Marquis  of,  Attorney-General  v.  315 
Hesilridge,  McDonnell  v.  273 
Heslop  V.  Baker,  51 
Ex  parte,  51 
Hewer,  Hall  v.  250 
Hewison  v.  Guthrie,  31 
Hewitt  V.  Price,  209 
Webb  V.  Ill 
Heyhoe  v.  Burge,  290 
Heywood,  Allwood  v.  12 

Hancock  v.  280 
Hibbert,  Simond  v.  29 
Hickman,  Wheatcroft  v.  290 
Hicks,  Lovell  v.  290 
Higgins,  Dunlop  v.  77 
V.  Pitt,  116 
V.  Sargent,  108 
Higgs,  Blades  v.  21 
Hilbert,  Tate  v.  300,  301 
Hill  V.  Gomme,  313 


INDEX    TO   ENGLISH    CASES   CITED. 


XCI 


Hill,  Johnson  v.  28 
Rex  V.  ]71 
Warburton  v.  189 
V.  Spencer,  85 
V.  Thompson,  218,  220 
Hillary,  Cranley  v.  116 
Hillman,  Tapfield  v.  32 
Hills  V.  Hill,  301 
Hilton  V.  Giraud,  320 
Hinchcliffe  v.  HinchclifFe,  319 
Hinchinbrook,  Lord,  Shipbrook  v.  268 
Hind  V.  Gray,  86 

Hindley  v.  Westmeath,  Marquis  of,  357 
Hinton  v.  Pincke,  317 
Hirsch  v.  Im  Thurn,  166 
Hiscox,  Willis  v.  268,  269 
Hitchcock  V.  Coker,  86 

Hitchins  v.  Kilkenny,  &c.,  Railway  Co.,  194 
Hitchman  v.  Stewart,  109 

V.  Walton,  14,  16 
Hoadley  v.  McLaine,  38 
Hoare  v.  Hornby,  271 
V.  Parker,  238 
Hobbs,  Robins  v.  122 
Hobby  V.  Allen  353 

V.  Collins,  353 
Hobson  V.  Bell,  379 
Hobson  V.  Blackburn,  321 
Hockley,  Steadman  v.  30 
Hodge,  Walter  r.  300 
Hodges,  Belton  v.  126 

V.  Croydon  Canal  Co.,  372 
Hodgkinson  v.  Fernie,  174 
Hodgson  V.  Loy,  41 

V.  Shaw,  109 
V.  AVightman,  116 
Nash  V.  78,  115 
Hodson  V.  Observer  Life  Assurance  Co.,  160 

Wallis  V.  334 
Hoffman,  Chollett  v.  224 
Hogg,  Dean  v.  58 
Holden,  Stokes  v.  45 
Holderness  v.  Collinson,  29 

V.  Rankin,  50 
Holford  V.  Phipps,  269 
Holland  v.  Eyre,  77 

V.  Hughes,  183 
Hollier,  Ravenshaw  v.  274 
Hollingsall,  Ilawkes  v.  153 
Hollinshead,  Reid  v.  290 
HoUis  V.  Bryant,  160 
V.  Claridge,  30 
Holloway  v.  Headington,  70 
Holmes  v.  Mackrell,  72 

V.  Tntton,  113 
Holroyd  v.  Marshall,  33 
Hoist  V.  Pownal,  42 
Homan,  Owen  v.  Ill 
Home,  Campbell  v.  251 
Homewood,  Leader  v.  14 
Honner  v.  Morten,  351 
Hooper  v.  Ramsbottora,  12 

V.  Rossiter,  240 
Hope,  Attorney-General  v.  309 
V.  Hayley,  33 
V.  Hope,  359 
Hopkins,  Chanter  v.  369  ♦■■ 

Tugman  v.  355 


Hopkins    v.  Prescott,  86 

V.  Logan,  69 
Hopkinson  v.  Lee,  278 
Hornby,  Hoare  v.  271 
Home,  Farina  v.  39 
Horner  v.  Flintoff,  67 
Hornsby  v.  Miller,  46 
Horsley  v.  Chaloner,  315 
Horton,  Hare  v.  14 

Richardson  v.  283 
Wells  V.  76 
V.  Sayers,  165 
Hosier,  Franklin  v.  28 
Hotham  v.  Somerville,  12 
Houghton  V.  Houghton,  279 

V.  Matthews,  29 
Houlston,  Bogue  v.  229 
How,  Jones  v.  271 

Pudding  V.  235 
Howard,  Harrop  v.  357 
V.  Rhodes,  268 
Howarth,  Samuel  v.  110 
Howden  v.  Heigh,  116 
Howe  V.  Lord  Dartmouth,  183 
V.  Synge,  85 
Whitlaker  v.  86 
Howell  V.  Gaylor,  244 

V.  Hanforth,  241 
V.  Mclvers,  111 
Howes,  Morris  v.  244 
Howse  V.  Chapman,  320 
Hughes,  Burton  v.  27 

Holland  v.  183 
Oldham  v.  263 
Rann  v.  68 
Stoveld  V.  34 
V.  Kelly,  373 
V.  Stubbs,  274 
V.  Wynne,  103,  375 
Hugonin,  Hall  v.  352 
Hulkes  V.  Day,  188 
Hulme  V.  Chitty,  358 
Humble  v.  Mitchell,  186,  209 

Mclver  V.  288 
Humfrey  v.  Gery,  372,  373 
Humpage,  Grafftey  v.  244,  271 
Humphrey,  Peer  v.  366 
Humphreys,  Davies  v.  110 
Hunloke,  Heneage  v.  250 
Hunt  V.  Bate,  69 
V.  Ilecht,  38 
V.  Peacock,  376 
Knight  V.  116 
Hunter,  Cruise  v.  359 

V.  Nockolds,  373 
V.  Parker,  53 
Huntley  v.  Russell,  65 
Hurst  V.  Jennings,  104 
Parnham  v.  112 
Smith  V.  274 
Husbands,  Ex  parte,  287 
Hatchings  v.  Smith,  350 
Hutchin.^on,  Featherstone  v.  85 
Hutton,  Bright  v.  293 
V.  Cowper,  98 
Hyat  r.  Hare,  290 
V.  Price,  108 


XCll 


INDEX    TO   ENGLISH    CASES   CITED. 


Idle's  Case,  19 

Ilderton  v.  Castrique,  122 

V.  Jewell,  121 
Im  Thurn,  Hirsch  v.  1G6 
Ince,  Parker  v.  K^S 

India  &  London  Life  Assur.  Co.,  Dalby  v.  161 
Inge  V.  Moseley,  85 
Ingham,  Siuison  v.  115 
Ingilby,  Winn  v.  16 
Ingleback  v.  Nichols,  122 
Inland  Revenue,  Comm'rs  of,  Sanville  v.  275 
Innes,  Penny  v.  82 
Inns,  Stal worth  v.  172 
Irish  Land  Co.,  Norris  v.  60 
Irons  V.  Smallpiece,  34 
Irvine,  Rannie  v.  86 
Irving  V.  Gray,  122 
Mercer  v.  67 
Iveson,  Other  v.  283 


Jackson,  Butcher  v.  262 
Ex  parte,  139 
Harrison  v.  291 
Purdew  v.  351 
Thorpe  v.  286 
Wheelwright  v.  144 
V.  Jackson,  251 
V.  Nichol,  42 
V.  Sinclair,  373 
T.  Thompson,  152 
V.  Woolly,  78,  285 
Jacquet  v.  Jacquet,  375 
Jacob,  Worrall  v.  358 
James  v.  Durant,  271 
V.  Thomas,  103 
Jamieson,  In  re,  177 
Janes,  Edwards  v.  78 
Janson,  Ex  parte,  286,  287 
Jarvis,  Smith  v.  290 
Jeffereys  v.  Small,  279 
JeflFery  v.  Jeflfery,  70 
JeflFeryes,  Watts  v.  188 
JeflFerys,  Boosey  v.  224,  227 
Jenkins,  Perry  v.  374 

Richardson  v.  101 
V.  Usborne,  42 
Jenkyn  v.  Vaughan,  272 
Jennings  v.  Brown,  72 
Hurst  v.  104 
Rawlings  v.  182 
Jervis,  Radburn  v.  181 
Jervoise  v.  Jervoise,   345 

V.  Silk,  257 
Jessopp  V.  Watson,  333 
Jewell,  Ilderton  v.  121 
Johnes,  Fores  v.  86 
Johnson,  Buckland  v.  43 
Cooper  V.  170 
Raw.^on  V.  41 
Worrall  v.  30 
V.  Fesenmeyer,  126 
T.  Hill,  28 
V.  Johnson,  324 
Jones  V.  Bowden,  369 


Jones  V.  Bright,  369 

V.  Davids,  190 

V.  How,  271 

Burke  v.  375 

Cleave  v.  78 

Edwards  v.  34,  273,  301 

Ford  V.  177 

Hartford  v.  28 

Macoubrey  v.  250 

Reilly  v.  67 

Scott  v.  375 

Tyler  V.  170 

Waite  V.  86,  358 
Judson,  Nicholls  v.  319 

K. 

Kain,  Shepperd  v.  369 
Keane,  Mornington  v.  272 
Kearsly  v.  Cole,  285 

Morris  v.  279 
Kearton,  Dawson  v.  71 
Keating,  Hanson  v.  348 
Smith  V.  274 
Keelev,  Winch  v.  112 
Keightly  v.  Watson,  278 
Keith,  ijrooks  v.  271 

Rees  V.  349 
Kekewich  v.  Manning,  273 
Kelly,  Archer  v.  271 

Hughes  V.  373 
Kemble  v.  Farren,  67 
Kemp,  Chilcote  v.  122 

Philanthropic  Society  v.  322 
Kempe  v.  Andrews,  279 

V.  Gibbon,  372 
Kendall,  Brierley  v.  46 
Kennay,  Rogers  v.  24 
Kennedy,  Ex  parte,  286 

Molony  v.  355 
Kensington  v.  Chandler,  273 
V.  Dolland,  354 
Ex  parte,  286 
Kenyon,  Eastwood  v.  69,  72 
Ker  V.  Lord  Dungannon,  238 
Kerrison  v.  Cole,  85 
Kershaw,  Dewhurst  v.  122 
Kettlewell,  Meek  v.  70 
Key,  Heath  v.  110 
Kiddill  V.  Farnell,  368 
Kidson  v.  Turner,  72 
Kilkenny,  &c.,  Railway  Co.,  Devereux  v.  193 

Hitchins  v.  194 
Kimpton,  Betts  v.  347 
Kincaid,  In  re,  348 
King,  Gaskell  v.  85 

V.  Rendall,  122 
Kingsford  v  Merry,  35,  366 
Kingsley's  Trust,  In  re,  360 
Kinnersley  v.  Mussen,  95 
Kinnier,  Atkyns  v.  67,  86 
Kirby  v.  Potter,  317 
Kirk  v.  Blurton,  290 
Kirkland,  Hanbury  v.  268 
Kirkman  v.  Booth,  289 

Needham  v.  271 
K^rkpatrick  v.  Tattersall,  72 
Kirwan  v.  Daniel,  274 


INDEX   TO   ENGLISH    CASES   CITED. 


XCIU 


Kirwan,  T^amilton  v.  251 
Kitchen,  Dickinson  v.  56 
Knatchbull  v.  Fearnhead,  313 
Knight  V.  B^irber,  186,  209    ■ 

V.  Boughton,  241 

V.  Hunt,  116 
Kruges  v.  Wilcox,  31 
Kymer,  Halford  v.  161 
Kynaston,  Clayton  v.  282,  285 

Lacy  V.  285 
Kyne  v.  Mooi-e,  85 
Kynman,  Whinman  v.  78 
Kynnersley,  Marquis  of  Ormond  v.  178 

L. 

Lacey  v.  Kynaston,  285 

Thompson  v.  28 
Lack,  Thompson  v.  Ill,  285 
Lackington  v.  Atherton,  41 
Ladbrooke,  Wheelhouse  v.  104 
Laing  v.  Fidgeon,  370 

Tucker  v.  Ill 
Lake  v.  Craddock,  279 

Tyler  v.  355 
Lambert's  Case,  290 
Lambert,  Clnugh  v.  358 

Mason  v.  64 
Lampert's  Case,  237 
Lampleigh  v.  Brathwait,  69 
Lane  v.  Burgh  art,  75 
Dunford  v.  342 
Langdale,  Lord  Ashton  v.  320,  321 
Langford,  Avery  v.  86 

In  re,  260 
Langham's  Trust,  In  re,  321 
Langston,  Wetherell  v.  278 
Lashbrooke  v.  Cock,  281 
Lassels  v.  Cornwallis,  246 
Lauderdale,  Lord  Garrard  v.  274 
Lavater,  Walton  v.  223,  281 
Lavell  V.  Hicks,  290 
Lavender,  Greedy  v.  351 
Law  v.  Bagwell,  274 

V.    London    Indisputable    Life     Policy 
Company,  161 
Lawrence,  Hall  v.  177 
Sollers  V.  65 
v.  Smith,  86 
Laws,  Blacklow  v.  355 
Lawton  v.  Lawton,  15 
Laythoarp  v.  Bryant,   77 
Lea,  Barker  v.  348 
Leader  v.  Homewood,  14 
Leake  v.  Loveday,  24 

Monys  v.  87 
Lechmere  v.  Earl  of  Carlisle,  263 

v.  Fletcher,  78 
Lesdam,  Bussell  v.  216 
Lee,  Brown  v.  110 

Hopkinson  v.  278 
Morris  v.  82 
Waring  v.  250 
V.  Griffin,  40 
V.  Lockhart,  116 
V.  Muggeridge,  71 
V.  Pain,  323 
V.  Prieaux,  355 


Lee  V.  Young,  261 
Leeder,  Biddie  v.   85 
Legg  V.  Evans,  24,  30,  46 
Leicester,  Furniss  v.  369 

V.  Rose,   116 
Leighton  v.  Wales,  67,  86 
Leith,  Mant  v.   258 
Lempriere,  De  la  Garde  v.  349 
Leonard  v.  Baker,   152 
Leonino,  Gilkes  v.  77 
Lepard  v.  Vernon,  368 
Lescher,  Bain  v.  323 
Leslie  v.  Guthrie,  59 

V.  Richardson,  171 
Lett,  Stahlschmidt  v.  374 
Le  Vasseur  v.  Scratton,  342,  350 
Lewen  v.  Dodd,  281 
Lewis  Bowles's  Case,  18 
Gilbert  v.  355 
Heath  v.  341 
Reynell  v.  292 
V.  Madocks,  271 
V.  Marling,  216 
Lickbarrow  v.  Mason,  42 
Liford's  Case,  18 
Limerick,  Earl  of,  Gray  v.  250 
Lincoln  v.  Windsor,  268 
Lindsall  v.  Thacker,  355 
Lindsay  v.  Gibbs,  59 
Lingard,  Ex  parte,  178 
Lingen  v.  Sowray,  263 
Linley  v.  Taylor,  320 
Linton,  TroUope  v.  343 
Lisle,  Agar  v.  23 
Lister,  Tidd  v.  350 
Littlefield  v.  Shee,  72 
Livesay  v.  Redfern,  317 
Lloyd  V.  Ashby,  290 

V.  Baldwin,  264 
V.  Lloyd,  341 
V.  Tench,  333 
Bromage  v.  80 
Harris  v.  152,  322 
Powell  V.  117 
Lockhart,  Lee  v.  116 

V.  Reilly,  109 
Loftus,  Ricketts  v.  249 
Logan,  Hopkins  v.  69 
Lomas  v.  Wright,  105 
London  Dock  Company,  Calvert  v.  110 

Indisputable    Life   Policy  Company, 
Law  V.  161 
Londonderry  &  Coleraine  Railway  Company, 
Reg.  V.   193 
Graham  v.  345 
Long  v.  Storie,  87. 
Longman  v.  Tripp,  233 
Longstaff  v.  Meagoe,  14 
Lonsdale,  Earl  of,  v.  Countess  of  Berohtoldt, 
243 

Rigg  v.  21 
Lorde,  In  re,  177 
Love  V.  Gaze,  325 
Loveacres  d.  Mudge  v.  Blight,  281 
Loveday,  Leake  v.  24 
Loveridge  v.  Cooper,  377,  378 
Low,  Edmonds  v.  318 
Lowe,  Banner  v.  242 


XCIV 


INDEX   TO   ENGLISH    CASES    CITED. 


Lowndes  v.  Collins,  108 

V.  Lowndes,  175 
Ley,  Hodgson  v.  41 
Loyd,  CuUingworth  v.  116 
Luard's  Case,  ;^.')3 
Lucas  V.  Dorrien,  35 
V.  Wilson,  173 
Lucy's  Case,  70 
Lunn,  Bank  of  England  v.  188,   190 

V.  Thornton,  32 
Lushington  v.  Boklero,   18 
Lyddon  v.  Ellison,  250 
Lyde  v.  Barnard,  79,  378 

V.  Russell,  14 
Lygon  V.  Lord  Coventry,  257 
Lynch  v.  Dalzeil,  162 

Lyne,  v.  355 

Lyon  V.  B>iker,  268 

Perrin  v.  340 
Lyons  v.  De  Pass,  366 
Lysons  v.  Barrow,   307 


M. 


Maberley  v.  Turton,  257 
Macarthur  v.  Campbell,  175 
Macaulay,  Bailey  v.   292 
Macdonald,  Walker  y.  81 
Macdougali,  Harnett  v.  357 

V.  Robertson,  170,  171 
Mackay,  Bentley  v.  273 
Mackenzie  v.  Mackenzie,  244 

Sandeman  v.  250 
Mackinnon  v.  Stewart,  274 
Mackintosh  v.  Trotter,  14 

Wellington  v.  165 
Mackrell,  Holmes  v.  72 
Macleod  v.  Annesley,  258 
Macnaught  v.  Russell,  122 
Macoubrey  v.  Jones,   250 
Maddison,  Benyon  v.  243 
Madeley,  Gaters  v.  347 
Madocks,  Lewis  v.   271 
Maguire,  Caulfield  v.  109 
Malcolm  v.  Charlesworth,  349 
Malkin  v.  Adams,  125 

Attornev- General  v.  244 
Mallan  v.  May,  "85,   87 
Mallet,  Dunnicliffv.  281 
Maltby  v.  Carstairs,  111 
Man  V.  Shiffner,  29 
Manders  v.  Williams,   26 
Mann,  Burnet  v.  333 
Mangles,  Naylor  v.  29 
Manning's,  Matthew,  Case,  237 

Kekewich  v.  273 
Manser  v.  Heaver,  173 
Mant  V.  Leith,  258 
March  v.  Attorney-General,  320 

V.  Head,  348 

y.  Russell,  314 

T.  Warwick,  122 
Mare  v.  Earle,  116 

V.  Warner,  116 
Market  overt,  the  Case  of,  366 
Markham,  Bunn  v.  301 
Marlborough,  the  Duke  of,  v.  St.  John,  65 
Marling,  Lewis  v.  216 


Marris,  Bower  v.  115 

Marriott  v.   The   Anchor   Reversionary   Co. 

Limited,  56 
Marsh,  Archer  v.  86 

Stone  v.  290,  367 

Marshall  v.  Fowler,  348 

Gardner  v.  348 

Shipley  v.  143 

Holroyd  v.  33 

Martin,  Collins  v.  82 

Reynish  v.  341 
Townsend  v.  318 
V.  Crompe,  279 
V.  Sedgwick,  292,  379 
Martindale,  Anderson  v.  278 
Taylor  v.  181 
V.  Booth,  46 
v.  Smith,  37 
Mason,  Davis  v.  86 

Lickbarrow  v.  42 
Sidwell  v.  72 
V.  Haddan,  166 
V.  Lambert,  64 
V.  Morgan,  346 
V.  Wallis,  171 
Mather  v.  Fraser,  14,  47 

v.  Scott,  321 
Mathias,  Gray  v.  85 
Matthews  v.  Brise,  258 

Houghton  V.  29 
Maude,  Benson  v.  313 

Scales  V.  34 
Maunder,  AVright  v.  151 
Maw,  Eiwes  v.  14 
Mawdesley,  Driver  v.  274 
Maxwell's  Trusts,  In  re,  240 
May  V.  Chapman.  82 
Mnllan  v.  85,  87 
Mayes,  Farrow  v.  96 
Mayor,  Squire  v.  16 
Maze,  Aubert  v.  84 
McCullooh,  Barrack  v.  272 
McDonnell  v.  Hesilrige,  273 
McEwen  v.  Smith,  35 
Meacher  v.  Younge,  256 
Meagoe,  Longstaff  v.  14 
Medina  v.  Stoughton,  369 
Medjicot's  Case,  132 
Meek  v.  Kettlewell,  70 
Melvill,  Otter  v.  271 
Melville,  Preston  v.  240 
Mentney  v.  Petty,  334 
Mercer  v.  Irving,  67 
Meredith  v.  Farr,  322 
Merrett,  Powell  v.  336 
Merriman,  Elliott  v.  312 
v.  Ward,  115 
Merry,  Kingsford  v.  35,  366 
Meryon  v.  Collett,  244 
Metcalf,  AVise  v.  65 
Methin,  Morris  v.  93 
Metropolitan  Counties,  Ac, Society,  v.  Brown, 

14 
Meux  V.  Bell,  378 
Mexborough,  Bower  v.  165 
Meyer,  Hanson  v.  37 

v.  Haworth,  72 
Meyrick,  Attorney-General  v.  320 


INDEX    TO   ENGLISH    CASES    CITED. 


xcv 


McGruire,  Asbburner  v.  317 
Micbell  V.  Michell,  241 
Michelmore  v.  Mudge,  350 
Middleton,  Copis  v.  109 
Miles  V.  Presland,  188 
Miller,  Horusby  v.  46 
Spackman  v.  46 
V.  Miller,  34,  300 
T.  Race,  365 
V.  Taylor,  224 
Mills  V.  Barber,  79 
Milne,  Walker  v.  320 

V.  Walmsley,  14 
Milner  v.  Lord  Harewood,  342 
Milvain,  Chapman  v.  196 
Minnit  v.  Whinery,  291 
Mitchell,  Brooke  v.  24,  170,  171 
Doe  d.  Esdaile  v.  141j 
Humble  v.  186,  209 
Holmes  V.  75 
V.  Ede,  35 
Mclver  v.  Humble,  288 
Mclvers,  Howell  v.  Ill 
McLaine,  Hoadley  v.  38 
McLeod  V.  Drummond,  312 
McMichael,  Boydell  v.  16 
McNeillie  v.  Acton,  289 
Moffatt,  Bank  of  England  v.  190 
Mollard,  Bagley  v.  322 
Mollett  V.  Wackerbarth,  83 
Molony  v.  Kennedy,  355 
Monkman  v.  Shepherdson,  72 
Montague  v.  Benedict,  353 
Montefiore  v.  Guedalla,  319 
Montolieu,  Lady  Elibank  v.  348 
Monys  v.  Leake,  87 
Moodie  v.  Bannister,  372 
Moor  V.  Barham,  334 
Stokes  V.  77 
Williams  v.  73 
Moore,  Cramer  v.  271 
Kyne  v.  85 
V.  Darton,  300 
V.  Erowd,  267 
V.  Moore,  357 
Morell  V.  Dubost,  93 
Morgan,  Ex  parte,  116,  122 
Mason  v.  346 
Osborn  v.  349 
Rickman  v.  319 

V.  The  Earl  of  Abergavenny,  19 
Morley  v.  Attenborough,  369 
Bird  V.  277,  323 
Child  V.  185 
Roddam  v.  372 
Wright  V.  350 
V.  Boothby,  75 
V.  Rennoldson,  340,  341 
Mornington  v.  Keane,  272 
Morris  v.  Glynn,  320 
V.  Howes,  244 
V.  Kearsley,  279 
V.  Lee,  82 
V.  Methin,  93 
Morrison,  Collett  v.  161 
Dutton  V.  117 
V.  Glover,  211,  212 
Mortimore  v.  Mortimore,  258 


Morton  v.  Copeland,  226 

V.  Tibbett,  38 

Honner  v.  351 
Moseley,  Inge  v.  85 
Mosley  V.  Baker,  212 
Moss,  Burrough  v.  346 

V.  Hall,  110 
Motley  V.  Downman,  235 
McQueen  v.  Farquhar,  251 
Mudge,  Michelmore  v.  350 
Muggeridge,  Lee  v.  71 
Mullen  V.  Bowman,  324 
Munnings,  Attwood  v.  368 
Munro,  Ex  parte,  377 
Murray  v.  East  India  Company,  374 

V.  Lord  Elibank,  348,  349 
Mussen,  Kinnersley  v.  95 
Myers  v.  Perigall,  320 

N. 

Nash,  Hodgson  v.  78,  115 

Sprigens  v.  177 
Naylor  v.  Mangles,  29 
Neate,  Franklin  v.  26 
Needham  v.  Kirkman,  271 
V.  Smith,  271 
Webb  V.  328 
Neilson,  Ex  parte,  198 

V.  Harford,  220 
Nesham,  Barry  v.  290 
Netherseal,  Rex  v.  305 
Newall,  In  re,  216,  217 
Newbon,  Wakefield  v.  30 
Newman,  Page  v.  108 
Newnham,  Parberry  v.  171 
Newton,  Ex  parte,  267 

V.  Askew,  273 

v.  Beck,  11 
Nichol,  Jackson  v.  42 
Nicholls  V.  Judson,  319 

V.  Rosewarne,  213 

V.  Stretton,  85,  87 
Nichols,  Ingleback  v.  122 

V.  Norris,  116 

V.  Roe,  175,  176 
Nicholson,  Potter  v.  95 

V.  Revill,  110,  285 
Nickels  v.  Haslam,  220 
Nlcolls  V.  Bastard,  26 

Smith  V.  99 
Nimmo,  Ellis  v.  70 
Nix,  Bryans  v.  35 
Nixon  V.  Brownlow,  194 
Noble,  Devaynes  v.  115,  286 

Vulliamy  v.  289 
Nockolds,  Hunter  v.  373 
Norbury  v.  Norbury,  183 
Norclifie,  Ambergate,  Ac,  Railway  Company 

V.  193 
Norcott  V.  Gordon,  318 
Norfolk  Estuary  Company,  Hall  v.  193 
Norman  v.  Baldry,  313 

Fergusson  v.  84 

v.  Phillips,  39 

V.  Thompson,  114 
Norris  v.  Irish  Land  Company,  60 
Nichols  V.  116 


XCVl 


INDEX   TO   ENGLISH    CASES   CITED. 


Norris  v.  Wright,  259 

Northeastern  Metropolitan  Asylum  District, 

Gibbons  v.  77 
Northey  v.  Field,  42 

V.  Northey,  345 
Norton  v.  Frecker,  o74 
Norwood.  Elvy  v.  373 
Nourse,  Richardson  v.  174 
Nugent,  Bhiir  v.  371 

V.  Gitlord,  312 
Numes  v.  Scipio,  186 


0. 


Observer  Life  Assurance  Society,  Hodson  v. 

160 
Ockenden,  Ex  parte,  28 
Ogilvie  V.  Folj.imbe,  76 
Oldfield  V.  Dodd,  131 
Oldham  v.  Hughes,  2C3 
Olive,  Stephens  v.  358 
Oliver,  Ex  parte,  116 
Smith  V.  321 
Onslow  V.  Onslow,  335 
Onwhyn,  Stoekdale  v.  86 
Ormond  (Miirquis  of)  v.  Kynnersley,  178 
Orr  v.  Dickinson,  57 
Osborn  v.  Morgan,  349 

Silk  V.  147 
Other  V.  Iveson,  283 
Otter  V.  Melville,  271 
Oulton,  Crallan  v.  375 
Ouseley  v.  Anstruther,  183 
Overhill's  Trust,  322 
Owen,  Eardley  v.  271 

V.  Homan,  111 

v.  Thomas,  77 
Oxford,  Earl  of,  Beavan  v.  188 


Packman,  Sloan  v.  87 
Page  V.  Bennett,  162 
V.  Newman,  108 
V.  Page,  323 
V.  Powles,  292,  379 
Paget  V.  Foley,  373 
Pain,  Lee  v.  323 

Ridout  V.  174 
V.  Whitaker,  27 
Paine,  Gleaves  v.  348 
Palles,  Simmonds  v.  274 
Palmer,  Fraser  v.  267 
Hall  V.  85 
Hay  V.  241 
Vandenberg  v.  34 
V.  Wakefield,  353 
V.  Wheeler,  251 
Perberry  v.  Newnham,  171 
Paris  V.  Paris,  240 

Sparrow  v.  67 
Parish,  Drummond  v.  296 
Parker,  Baldy  v.  39 
Clarke  v.  341 
Hoare  v.  238 
Hunter  v.  53 
Sparling  v.  320 
Staines  v.  267 


Parker,  Watson  v.  105 

v.  Ince,  138 
Parkin  v.  Carruthers,  288 
Parkinson,  Ames  v.  183 
Parnham  v.  Hurst,  112 
Parry,  Barrett  v.  171 
Parsons,  Bank  of  England  v.  190 
Partington,  Andrews  v.  256 
Partridge,  Wheldale  v.  262 
Pass,  Poole  v.  269 
Patch,  Channon  v.  18 
Patent  Derrick  Co.,  Thames  Iron  Works  Co. 

V.  28 
Paton  V.  Sheppard,  241 
Paulett  (Lord  William),  Ex  parte,  259 
Pawle  V.  Gunn,  69,  186 
Paxton,  Cholmely  v.  18 
V.  Popham,  84 
Payne  v.  Deakle,  171 
Paynter,  Adams  v.  266 

V.  Harrison,  113 
Peacock,  Berriman  v.  18 
Hunt  V.  376 
Rhodes  v.  81,  365 
Peake,  Ex  parte,  286 
Pearley  v.  Smith,  241 
Pearson  v.  Dawson,  35,  39 

Foster  v.  365 
Peck,  Dawes  v.  39,  42 
Pedley  v.  Goddard,  175 
Peel  V.  Tatlock,  111 
Peer  v.  Humphrey,  366 
Peering,  Ford  v.  12 
Pelly  V.  Wathen,  30 
Pemberton,  Ex  parte,  29 

Wortham  v.  348 
V.  Vaughan,  86 
Pendlebury  V.  Walker,  110,  116 
Pennell  v.  Reynolds,  126 
Pennistone,  Waterfall  v.  47 
Penny  v.  Innes,  82 
Penoyre,  Ward  v.  313 
Penton,  Davies  v.  67 
Perigal,  Myers  v.  320 
Perkins  v.  Bradley,  44 
Groves  v.  349 
Walker  v.  85 
Perrin  v.  Lyon,  340 
Perry,  Creed  v.  352 

V.  Jenkins,  374 
V.  Skinner,  220 
V.  Truefit,  235 
Petch  V.  Tutin,  32 
Peter  v.  Compton,  76 

V.  Rich,  190 
Peterborough  (Bishop  of),  Boyle  v.  249 
Petre  v.  Espinasse,  273 
Petrie  v.  Bury,  276 
Pettitt,  Thompson  v.  36 
Petty  v.  Anderson,  343 
V.  Styward,  280 
Mentney  v.  334 
Pflegar  v.  Browne,  114,  116 
Philanthropic  Society  v.  Kemp,  322 
Philips  V.  Robinson,  10 
Phillips,  Norman  v.  39 

V.  Phillips,  279,  281 
Swan  V.  79,  378 


INDEX   TO  ENGLISH   CASES   CITED. 


XCVll 


Phillipson  v.  Gatty,  258 
Philpot  V.  Briant,  111 
Philpott,  Ex  parte,  117 

V.  St.  George's  Hospital,  321 
Phipps,  Holford  v.  269 
Pickering  v.  Appleby,  186 
V.  Busk,  368 
V.  Dowson,  369 
Pocock  V.  95 
Pickford,  Aspinwall  v.  29 
Picton,  Shaw  v.  115 
Pidding  v.  How,  235 
Pidgley  v.  Rawling,  18 
Pierce  v.  Thornely,  350 
Pierson  v.  Garnett,  250 
Piggott,  Clancey  v.  75 

Wilson  V.  248,  249 
Pigot's  Case,  83 
Pilck,  Shower  v.  34 
Pilkington,  Smith  v.  212 
Pimbley,  Fisher  v.  173 
Pinchon's  Case,  101 
Pinke,  Hinton  v.  317 
Pinkney  v.  Hall,  290 
Piper,  Cradock  v.  268 
Pitt,  Higgins  v.  116 
Plaice,  Russell  v.  312 
Piatt  V.  Routh,  310 
Plummer,  In  re,  286 
Plymouth  (Earl  of),  Ridout  v.  345 
Pocock,  Brown  v.  356 
Roberts  v.  317 
V.  Pickering,  95 
Pole  V.  Harrobin,  84 
Poole,  Croft  on  v.  147 

V.  Pass,  269 
Pope,  Seagrave  v.  212 
Popham,  Paxton  v.  84 
Poppleton,  Everard  v.  95 
Porter,  Watts  v.  188 
Pott  V.  Eyton,  290 
Potter,  Hall  v.  341 
Kirby  V.  317 
V.  Nicholson,  95 
Powell  V.  Hellicar,  301 
V.  Lloyd,  117 
V.  Merrebt,  336 
T.  Rees,  64 
Shoft  V.  99 
Power  V.  Barham,  369 
Powle  V.  Cunn,  69 
Powles  V.  Page,  292,  379 
Pownal,  Hoist  v.  42 
Prance  v.  Sympson,  72 
Presland,  Miles  v.  188 
Prescot,  Snee  v.  42 
Prescott  V.  Boucher,  347 

Hopkins  v.  86 
Preston  y.  Melville,  240 
Prestwood,  Durant  v.  333 
Price  V.  Anderson,  340 
Barker  v.  285 
Green  v.  85,  87 
Harrington  v.  10 
Hewitt  V.  209 
Hyde  v.  108 
Prosser  v.  212 
V.  Green,  67 


Price  V.  Richardson,  75 
Pride  v.  Fooks,  183,  296 
Prieaux,  Lee  v.  354 
Pring  V.  Pring,  324 
Prior  V.  Hembrow,  170 
Pritchard  v.  Arbouin,  321 

Shaw  V.  86 
Proctor  V.  Sargeant,  86 
Prosser  V.  Price,  212 
Proudley  v.  Fielder,  355 
Pugh  V.  Stringfield,  278 

V.  Taylor,  354 
Pulham,  Farmin  v.  268 
Pullen  V.  Purbecke,  49 
Purdew  v,  Jackson,  350 
Pye,  Ridout  v.  172 

Pym  V.  Great  Northern  Railway  Co.,  62 
Sweet  V.  31 


Q. 

Quartermaine  v.  Bittleston,  51 


R. 


Race,  Miller  v.  365 
Rachfield  v.  Careless,  324 
Radburn  v.  Jervis,  181 
Ralph,  Bird  v.  65 
Ram,  Ex  parte,  375 
Ramsbottom,  Harcourt  v.  172 

Hooper  v.  12 
Ramsden  v.  Smith,  271 
Randall  v.  Randall,  279 
V.  Russell,  239 
Rankin,  Holderness  v.  50 
V.  Weguelin,  300 
Rann  t.  Hughes,  68 
Rannie  v.  Irvine,  86 
Ravenshaw  v.  Hollier,  274 
Rawling,  Pidgley  v.  18 
Rawlings  v.  Jennings,  182 

In  re.  122 
Rawlinson  v.  Clark,  290 

Williams  v.  115 
Rawson  v.  Johnson,  41 
Rawsthorn  V.' Arnold,  175 
Reay,  Cookson  v.  263 

V.  Richardson,  114. 
Redfern,  Livesay  v.  317 
Reed  v.  Wilmot,  46 
Rees  V.  Keith,  349 
Powell  V.  64 
Reeve,  Beaumont  v.  72 
V.  Whitmore,  33 
Regina  v.  Londonderry  and  Coleraine  RaiN 

way  Co.,  193 
Regina  v.  Whitmarsh,  196 
Reid,  Donellan  v.  76 
West  V.  379 
V.  Fryatt,  171 
V.  Hollingshead,  290 
Reilly  v.  Jones,  67 

Lockhart  v.  109 
Reindel  v.  Schell,  67 
Relph,  Bird  v.  63 
Randall,  King  v.  122 


XCVlll 


INDEX   TO   ENGLISH    CASES   CITED. 


Eennoldson,  Morley  v.  340,  341 
Rev-ill,  Nicholson  v.  110,  285 
Rex  V.  Biirdell,  168 

V.  Collectors  of  Customs,  279 
V.  Greenhill,  359 
V.  Uill,  171 
V.  Netherseal,  305 
V.  Sankey,  30 
V.  Sherrington,  359 
V.  Wheeler,  220 
Reynell  v.  Lewis,  292 
lleynish  v.  Martin,  341 
Reynolds,  Bodley  v.  43 
I'ennell  v.  126 
Robinson  v.  82 
V.  Hall,  50 
Rhodes,  Howard  v.  268 

Peacock  Y.  81,  365 
V.  Smethurst,  374 
Rice  V.  Shute,  285 
Weall  V.  319 
Rich,  Peter  v.  310 
Richards  v.  Heather,  283 
V.  Richards,  347 
Wilding  V.  274 
Richardson  v.  Bank  of  England,  195 
V.  Brown,  369 
V.  Gilbert,  226 
V.  Greese,  319 
V.  Horton,  283 
V.  Jenkins,  101 
V.  Nourse,  174 
Ex  parte,  289 
Leslie  v.  171 
Price  V.  75 
Reay  v.  114 
Warwick  v.  282 
Ricketts,  Griffiths  v.  264,  274 

V.  Loftus,  249 
Rickman  v.  Morgan,  319 
Ridgway  v.  Clare,  286 
Ridout  V.  Earl  of  Plymouth,  345 
V.  Pain,  174 
V.  Pye,  172 
Rigg  V.  Earl  of  Lonsdale,  21 
Right  d.  Compton  v.  Compton,  341 
Ripley  V.  Waterworth,  190 
Rishton  v.  Cobb,  340 
Roberts,  Brainah  v.  291 
Cave  V.  336 
V.  Pocock,  317 
V.  Spicer,  355 
V.  Walker,  45 
V.  Wyatt,  24 
Robertson,  Dimsdale  v.  171 

Macdougall  v.  170,  171 
Robins,  Boyd  v.  138 

V.  Hobbs,  122 
Robinson,  Brandon  v.  356 
Cusack  V.  38 
Philips  V.  10 
V.  Geldard,  322 
V.  Reynolds,  82 
V.  Robinson,  183,  258 
Roddam  v.  Morley,  372 
Rodway,  Sanders  v.  358 
Roe,  Nichols  v.  175,  176 
Rogers,  Abbott  v.  197 


Rogers    v.  Acaster,  352 
V.  Kennay,  24 
Chaplin  v.  34 
Rogers's  trusts,  242 
Rolle,  Ryall  v.  46 
Rose,  Leicester  v.  116 
Rosewarne,  Nicholls  v.  213 
Rosier,  Shackell  v.  69 
Ross,  Bateman  v.  358 
Ross's  trust,  357 
Rossiter,  Hooper  v.  240 
Rouch  V.  Great  Western  Railway  Co.,  141 
Round,  Addison  v.  24 
Roundell  v.  Breary,  272 
Routh,  Piatt  V.  310 
Routledge  v.  Dorril,  251,  252 

V.  Grant,  77 
Rowlands,  Cope  v.  84 
Rowlandson,  Ex  parte,  290 
Rowles,  Ryall  v.  34,  46 
Royal  Mail  Co.,  European  Co.  v.  56 
Ruddell  V.  Dobree,  301 
Rudge  V.  Winnall,  17 
Rushforth  r.  Hadfield,  29 
Russell,  Douglass  v.  59 
Huntley  v.  65 
Macnaught  v.  122 
March  v.  314 
Randall  v.  239 
V.  Ledsam,  215 
V.  Lyde,  14 
V.  Plaice,  312 
V.  Smith,  220 
Rust  T.  Cooper,  144 
Rutland,  Duke   of,   v.  Duchess  of  Rutland, 

334 
Ryall  V.  Rolle,  46 

V.  Rowles,  34,  46 


S. 


Saddler's  Company  v.  Badcock,  162 

Sainter  v.  Ferguson,  67 

Salkeld,  In  re,  177 

Saloon  Omnibus  Company,  Hale  v.  49 

Salt,  Stead  v.  291 

Samon's  Case,  173 

Samuda,  Zwinger  v.  35 

Samuel  v.  Duke,  366 

V.  Howarth,  110 
Sandeman  v.  Mackenzie,  250 
Sanders,  Bloxham  v.  41,  43 

V.  Rodway,  368 
Sanderson  v.  Bell,  28 
Sandwich,  Ca.«e  of  Lord,  252 
Sandys,  Warburton  v.  266 
Sanger,  Cutten  v.  273 
Sankey,  Rex  v.  30 
Sanville   v.    The   Commissioners    of   Inland 

Revenue,  275 
Sargeant,  Proctor  v.  86 
Sargent,  Higgins  v.  108 
Saunders,  De  Mautort  v.  286 

Tollit  V.  178 

V.  Topp,  39 

V.  Wakefield,  75 
Savage,  Browne  v.  378 


INDEX   TO   ENGLISH   CASES   CITED. 


XCIX 


Savill  V.  Barchard,  29 
Sawyer,  Whittem  v.  348 
Sayers,  Horton  v.  165 
Scales  V.  Maude,  34 
Scarborough  v.  Borman,  356 
Scarpellini  v.  Atcheson,  347 
Scarsbrook,  Edwards  v.  97 
Scattergood  v.  Sylvester,  367 
Schell,  Reindel  v.  67 
Schwabe,  Clift  v.  160 
Scipio,  Numes  v.  186 
Scott  V.  Avery,  166 

V.  Champernown,  30 
v.  Corporation  of  Liverpool,  166 
V.  Jones,  375 
V.  Lord  Hastings,  188 
V.  Spashett,  348.  349 
V.  Van  Vansaudau,  168 
Driver  v.  269 
Drury  v.  271 
Evans  v.  254 
Mather  v.  321 
Scottish  Union,  &c.,  Simpson  v.  162  , 

Scratton,  Le  Vasseur  v.  342,  350 
Seagrave  v.  Pope,  212 
Seaton  v.  Benedict,  353 
Sedgwick,  Martin  v.  292,  379 
Selby  v.  Selby,  76 
Self,  Fleming  v.  212 
Seton,  Clarke  v.  103 
Sewell,  Stickney  v.  253 
Shackell  v.  Rosier,  69 
Shafto  V.  Powell,  99 
Shalmer,  Spalding  v.  264 
Shaw,  Badger  v.  47 

Hodgson  V.  109 
T.  Evans,  93 
V.  Picton,  115 
V.  Pritchard,  87 
Shee,  Clarke  v.  365 

Littlefield  v.  72 
Shelley,  Gill  v.  322 
Shepherd,  Cooper  v.  43 

Zachary  v.  175 
Shepherdson,  Monkman  v.  72 
Shepley  v.  Davis,  37 
Sheppard  v.  Duke,  371 
Shepperd  v.  Kain,  369 
Paton  V.  241 
Sherrard  v.  Sherrard,  241 
Sherrington,  Piex  v.  359 

v.  Yates,  346 
Sherwood,  In  re,  267 
Shewen  v.  Vanderhorst,  374 
Shiffner,  Man  v.  29 

Shilling  v.  Accidental  Death  Insurance  Com- 
pany, 160 
Shipbrook,  Lord,  v.  Lord  Hinchinbrook,  268 
Shipley  V.  Marshall,  143 
Shipman,  Bush  v.  116 
Shore,  Lady  v.  Billingsley,  277 
Short,  Brewin  v.  141 
Shortland,  Ex  parte,  273 
Shower  v.  Pilck,  34 
Shute,  Rice  v.  285 
Shuttleworth  v.  Greaves,  317 

Wigg  v.  85 
Sibree  v.  Tri^jp,  114 


Sidwell  v.  Mason,  72 
Silk,  Jervoise  v.  257 
v.  Osborn,  147 
Simmonds  v.  Palles,  274 
Simmons,  Farebrother  v.  40 
V.  Gutteridge,  303 
Simond  v.  Hibbert,  29 
Simpson,  Cowell  v.  29,  31 

V.  Scottish  Union,  &c.,  162 
Thompson  v.  251 
Sims  V.  Thomas,  272,  273 
Simson  v.  Ingham,  115 
Sinclare  v.  Jackson,  373 
Skarf  V.  Soulby,  272 
Skerrat,  Ex  parte,  273 
Skey  V.  Barnes,  254 
Skillern,  Amies  v.  277 
Skinner,  Braithwaite  v.  6 
Perry  v.  220 
V.  Upshaw,  28 
Skip,  West  V.  34 
Slatter  v.  Slatter,  358 
Sleech  v.  Thorington,  317 
Slingsby's  Case,  276,  278 
Sloane  v.  Packman,  87 
Smailes  v.  Wright,  177 
Small,  Churchill  v.  12 
Jeffereys  v.  279 
Smallpiece,  Irons  v.  34 
Smarte  v.  Edsun,  283 
Smethurst,  Rhodes  v.  374 
Smith,  Antrobus  v.  34 

Carpenter  v.  216 

Farmer  v.  212 

Fox  V.  173 

Grace  v.  289 

Huichings  v.  250 

Lawrence  v.  86 

McEwin  V.  35 

Martindale  v.  37 

Needham  v.  271 

Pearley  v.  241         , 

Ramsden  v.  271 

Russel  V.  226 

Vernon  v.  162 

Whitemore  v.  172 

Williams  v.  366 

V.  Bond,  103 

V.  Bruning,  341 

V.  Chichester,  30 

V.  Clarke,  81  ^ 

V.  Hurst,  274 

V.  Jarvis,  290 

V.  Keating,  274 

V.  NicoUs,  99 

v.  Oliver,  321 

V.  Pilkington,  212 

V.  Smith,  314,  378 
Smithard,  Cornforth  v.  72 
Snee  v.  Prescott,  42 
Snellgrove  v.  Baily,  300 
Snow,  Goddard  v.  354 

Wilbraham  v.  24 
Soane,  Conduitt  v.  238 
Sellers  V.  Lawrence,  65 
Somerville,  Hothaiu  v.  12 
Somes,  British  Empire  Shipping  Co.  v.  28 
Sothern,  Swanwick  v.  37 


INDEX   TO  ENGLISH   CASES  CITED. 


Souch  V.  Strawbridge,  76 
Soulby,  Skarfv.  272 
South  Carolina  Bank  v.  Case,  291 
Sowray,  Lingen  v.  2(13 
Spackman  v.  Miller,  46 
Spalding,  Alsager  v.  116 

V.  Shalmer,  264 
Sparling  v.  Parker,  320 
Sparrow,  Ex  parte,  40 
Farmer  v.  212 
V.  Paris,  67 
Spashett,  Scott  v.  348,  349 
Spencer,  Hill  v.  85 

V.  Spencer,  250 
Spettigue,  White  v.  366 
Spicer,  Roberts  v.  355 
Spiers,  Thompson  v.  377,  379 
Spottiswood's  case,  293 
Sprague,  Ex  parte,  287 
Sprigens  v.  Nash,  177 
Squire,  Mayor  v.  16 

V.  Whitton,  110 
Stafford,  Earl  of,  v.  Buckley,  181 
Stahlschmidt  v.  Lett,  374 
Stainbank,  Davies  v.  110 
Stallwood,  Tharpe  v.  329 
Stalworth  v.  Inns,  172 
Stamford,  Heard  v.  353 
Stamper  v.  Barker,  358 
Stanes  v.  Parker,  267 
Staniland  v.  AVillot,  301 
Stonley  v.  Bernes,  298 

Crossfield  v.  98 
Stannard,  Angier  v.  269 
Stansfeld  v.  Cubitt,  47 
Stanton  v.  Hall,  350 
Statham,  Adam  v.  173 
Stead,  Barker  v.  292 

V.  Salt,  291 
Steadman  v.  Hockley,  30 
Steele,  Swan  v.  290 
Steinmitz  v.  Halthin,  349 
Stephens,  Edgeberry  v.  218 
Hart  V.  347 
V.  Olive,  358 
Sterling,  Exparte,  29 
Stevenson  v.  Blakelock,  29 

Toft  V.  373 
St..  George's  Hospital,  Philpott  v.  321 
St.  John,  Lord,  v.  Boughton,  371 

•  V.  Lady  St.  John,  358,  359 

Marlborough,   The  Duke  of 
V.  65 
Steward  v.  Greaves,  196 
Stewart,  Hitchman  v.  110 

Stewart,  Mackinnon  v.  274 
Stickney  v.  Sewell,  258 
Stiff,  Cassell  v.  232 
Stockdale  v.  Onwhyn,  86 
Stocken  v.  Stocken,  256 
Stocker  v.  Brockelbank,  290 
Stokes,  Brice  v.  268 

v.  Holden,  45 

v.  Moor,  77 
Stone  V.  Marsh,  290,  367 
Storie,  Long  v.  87 
Stoughton,  Medina  v.  369 
Stoveld  V.  Hughes,  34 


Strafford,  Lord,  Byng  y.  242 
Strathmore,  Countess  of,  v.  Bowes,. 354 
Stratton  v.  Grimes,  341 
Strawbridge,  South  v.  76 
Streathfleld  v.  Halliday,  284 
Stretton,  Nicholls  v.  85,  87 
Stringfield,  Pugh  v.  278 
Strode  v.  Blackburne,  12 
Strutt,  Deeks  v.  6 

Galsworthy  v.  67 
Stuart  V.  Burrows,  306 

Grey  v.  271 
Stubbs,  Hughes  v.  274 
Studdy,  Churchward  v.  21 
Sturges  v.  Chapneys,  348 

Welchman  v.  329 
Sturgis  V.  Darell,  374 
Styles  v.  Guy,  268 
Styward,  Petty  v.  280 
Sumner,  Gambart  v.  229 
Sunbolf  V.  Alford,  28 
Sutton,  Ex  parte,  132 

V.  Buck,  26 

Fitch  V.  114 
Swallow  V.  Binns,  254 
Swan  V.  Steele,  200 
Swann  v.  Phillips,  79,  378 
Swans,  The  Case  of,  19 
Swauwick  v.  Sothern,  37 
Swayne  v.  Swayne,  378 
Sweet  V.  Benning,  226 

V.  Pym,  31 
Swinburne,  Craythorne  v.  110 
Swinnerton,  Heming  v.  160 
Swinton,  AVilloughby  v.  104 
Sworder,  Castle  v.  39 
Sylvester,  Scattergood  v.  367 
Symes,  Balch  v.  30 
Symonds,  Thompson  v.  229 

Williams  v.  378 
Sympson,  Prance  v.  72 
Synge,  Howe  v.  85 


Taggart,  Carter  v.  241,  349 
Tapfield  v.  Hillman,  32 
Tappenden  v.  Burgess,  117 
Tate  v.  Hibbert,  300 
Tatlock,  Peel  v.  Ill 
Tattersair,  Kirkpatrick  v.  72 
Taunton,  Wood  v.  178 
Taylor  v.  Haygarth,  336 

v.  Martindale,  181 

V.  Pugh,  354 

TurnbuU,  v.  189 

Linley  v.  320 

Miller  v.  224 

In  re,  359 

Tetley  v.  122 

Wallis  V.  244 

Waters  v.  165 
Tebbs  V.  Carpenter,  183 
Teesdale,  Dickinson  v.  375 
Tempest  v.  Tempest,  322 
Templeton  v.  Warrington,  254 
Tench,  Lloyd  v.  333 
Tetley  y.  Taylor,  122 


INDEX   TO   ENGLISH   CASES   CITED. 


CI 


Teynham,  Lord,  v.  Webb,  250 
Thacker,  Lindsall  v.  355 
Thames  Iron  Works  Company  v.  Patent  Der- 
rick Company,  28 
Tharpe  v.  Stallwood,  329 
Thomas  v.  Desanges,  141 
James  v.  103 
Owen  V.  77 
Sims  V.  272,  373 
Thomason  v.  Frere,  280 
Thompson  v.  Dominy,  59 
V.  Griffin,  256 
V.  Lacey,  28 
V.  Lack,  111,  185 
V.  Pettit,  36 
V.  Simpson,  251 
T.  Spiers,  377,  378 
V.  Symonds,  229 
V.  Thompson,  320 
Farrant  v.  16 
Fraser  v.  70 
Hill  V.  218,  220 
Jackson  v.  152 
Norman  v.  114 
Thompson's  Trusts,  45 
Thorington,  Sleech  v.  317 
Thorneley,  Pierce  v.  350 
Thornton,  Lunn  v.  32 
Thorpe,  Glynn  v.  100 

Williams  v.  377,  379 
V.  Jackson,  286 
Thurlow,  Cunynghame  v.  252 
Tibbett,  Morton  v.  38 
Tidd  V.  Lister,  350 
Tidsvveil  v.  Angerstein,  161 
Tipping  V.  Tipping,  345  • 

Todd  V.  Wilson,  267 
Toft  V.  Stephenson,  373 
Tollit  V.  Saunders,  178 
Tolson  V.  Dykes,  155 
Tomlin  v.  Mayor  of  Fordwich,  173 
Topham,  Duncan  v.  77 
Ex  parte,  139 
Topp,  Saunders  v.  39 
Townroe,  Wightman  v.  289 
Townsend  v.  Martin,  318 
Townshend,  Lord,  v.  Windham,  345 
Travers  v.  Travers,  271 
Tripp,  Longman  v.  233 

Sibree  v.  114 
Trollope  v.  Linton,  343 
Trotter,  Mackintosh  v.  14 
Truefit,  Perry  v.  235 
Trueman  v.  Fenton,  72 
Trye  v.  Gloucester,  Corporation  of,  321 

Williams  v.  209 
Tucker,  Hayter  v.  320 

V.  Laing,  111    , 
Tuer  V.  Turner,  353 
Tugman  v.  Hopkins,  355 
Tullett  V.  Armstrong,  356 
Tupper,  Bamfield  v.  78 
Turnbull,  Godfrey  v.  288 

Taylor  v.  189 
Turner,  Kidson  v.  72 
Tuer  V.  353 
V.  Turner,  181,  255 
V.  Vaughan,  85 


Turner   v.  Ward,  34 

V.  Wood,  301 
Turton,  Maberley  v.  257 
Tutin,  Petch  v.  32 
Tutton,  Holmes  v.  113 
Twynam,  Coope  v.  110 
Twyne's  Case,  45,  71 
Tyler  v.  Jones,  170 
V.  Lake,  355 
Tyndall,  Attorney-General  v.  321 
Tyre,  Williams  v.  209 


U. 

Upfill's  Case,  293 
Upshaw,  Skinner  v.  28 
Usborne,  Jenkyns  v.  42 


Valpy,  Dickinson  v.  291 
Van  V.  Barnett,  263 
Vandenberg  v.  Palmer,  34 
Vandeputt,  Wiseman  v.  42 
Vanderhorst,  Shewen  v.  374 
Van  Sandau,  Scott  v.  168 
Vansittart  v.  Vansittart,  359 
Vaughan,  Grant  v.  365 

Jenkin  v.  272 

Pemberton  v.  86 

Turner  v.  85 

Walmsley  v.  249 
Vawdry,  Cartwright  v.  322 
Vawser,  Brown  v,  179 
Veal  V.  Veal,  300 

Venables  v.  East  India  Company,  304 
Vere  v.  Ashby,  290 
Vernon,  Davis  v.  10,  12,  30 
Lepard  v.  368 
V.  Smith,  162 
Vick,  Edelston  v.  235 
Viner  v.  Francis,  323 
Vulliamy  v.  Noble,  289 


W. 

Wade  V.  Dowling,  173 
Wackerbath,  Mollett  v.  83 
Wain  V.  Warlters,  74 
Waineright,  Barclay  v.  240 
Wainman  v.  Kynman,  78 
Wainsford,  Warner  v.  329 
Waite  V.  Jones,  86 
Jones  V.  358 
Wakefield  v.  Brown,  278 
V.  Newbon,  30 
Palmer  v.  375 
Saunders  v.  75 
Wales,  Leighton  v.  67,  86 
Walford,  Dyke  v.  327 
Walker  v.  Giles,  212 

V.  Macdonald,  81 
V.  Milne,  320 
V.  Perkins,  85 
Pendlebury  v.  110,  116 


Cll 


INDEX   TO   ENGLISH   CASES   CITED. 


Walker,  Roberts  v.  45 

■\Voodineston  v.  356 
Young  V.  174 
Wall,  Harris  v.  73 
Wallace  v.  Auldjo,  349 

V.  Woodgate,  28 
Wallis,  Binnington  v.  70,  85 
Fordham  v.  78 
Ma?on  V.  171 
V.  Day,  86 
V.  Ilodson,  334 
V.  Tnylor,  244 
Walmsley  v.  Vaughan,  249 
Walrond  v.  Walrond,  359 
Walsh,  Gale  V.  81 

V.  AVhitcomb,  112 
Walter,  Adcock  v.  122 
V.  Ilodge,  300 
Idle's  Case,  18 
Walters,  Bevan  v.  28 
Walton,  Hitchman  v.  14,  16 

V.  Lavater,  223,  281 
Wane,  Cumber  v.  114 
Warburton  V.  Hill,  189 

V.  Sandys,  266 
Ward,  Bainton  v.  246 
Merriman  v.  115 
V.  Beck,  54 
V.  Byrne,  86 
v.  Combe,  240 
V.  Penoyre,  313 
V.  Turner,  34 
V.  Yates,  349 
Warde,  Bristow  v.  250 
In  re,  260 
Dudley  V.  15 
Warden  v.  Ashburner,  241 
Waring  v.  Lee,  250 
Warlters,  Wain  v.  72 
Warner,  Mare  v.  116 

V.  Wainsford,  329 
Warrington,  Templeton  v.  254 
Warwick,  Countess  of,  Edwards  T.  242 
March  v.  122 
V.  Richardson,  282 
Waterfall  v.  Pennistone,  47 
Waterhouse,  Close  v.  29 
Waterpark,  Young  v.  248 
Waters  v.  Taylor,  165 
Waterworth,  Ripley  v.  190 
Wathen,  Pelly  v.  30 
Watson  V.  Birch,  371 
V.  Parker,  105 
Jessopp  V.  333 
Keightley  v.  278 
Watt  V.  Wiitt,  355 
Watts  V.  Girdlestone,  183,  269 
V.  Jefferyes,  188 
V.  Potter,  188 
Waugh  V.  Carver,  289,  291 
Way  V.  Bassett,  286 
Weall  V.  Rice,  319 
Weatherby,  Brown  v.  286 
Webb  V.  Fox,  147 
V.  Grace,  341 
V.  Hewitt,  111 
V.  Needham,  328 
Teynham,  Lord,  v.  250 


Webster  v.  Webster,  289 
Weguelin,  Rankin  v.  300 
Welchman,  In  re,  348 

V.  Sturgis,  329 
Weld,  Graves  v.  17 
Weldon  v.  Gould,  29 
Wellnnd,  Balfour  v.  204 
Wellesley  v.  Beaufort,  Duke  of,  359 

V.  Wellesley,  272 
Wellington  v.  Mackintosh,  165 
Wells  v.  Horton,  76 
Wennall  v.  Adney,  72 
West  v.  Burney,  251 
V.  Reid,  379 
V.  Skip,  34 
Westland,  Wiseman  v.  12 
Westmacott,  Harnier  v.  233 
Westmeath,  Marquis  of,  Hindley  v.  357 
Weston,  Foster  v.  108 
Wetherell  v.  Langston,  278 

V.  AVilson,  257 
Whale  V.  Booth,  312 
Whalley,  Carter  v.  288 
Wheatcroft  v.  Hickman,  290 
Wheeler,  Bushel  v.  38 

Doe  d.  Stace  v.  303 
Palmer  v.  251 
Rex  v.  220 
Wheelhouse  v.  Ladbrooke,  104 
Wheelwright  v.  Jackson,  144 
Wheldale  v.  Partridge,  262 
Whinery,  Minnit  v.  291 
AVhitaker,  Pain  v.  27 
AVhitcomb,  Walsh  v.;il2 
Whitmore,  Reeve  v.  33 
White,  Acton.v.  357 
Blake  v.  110 
Corbitt  V.  138 
V.  Grane,  257 
V.  Spettigue,  366 
Whitfield  v.  Bewitt,  18 
Whitmarsh,  Regina  v.  196 
Whitmore  v.  Smith,  172 
AVhittaker  v.  Howe,  85 
AVhittem  v.  Sawyer,  348 
AVhittingstall  v.'Grover,  286 
Whittle  V.  Henning,  352 
Whitton,  Squire  v.  110 
Whorwood,  Cooke  v.  173 
Wigg  v.  Shuttleworth,  85 
Wightman,  Hodgson  v.  116 
V.  Townroe,  289 
Wilbraham  v.  Snow,  24 
Wilcox,  Kruges  v.  31 
Wild  V.  Clarkson,  103 
Wilding  V.  Richards,  274 
Wildman  v.  Wildman,  182 
Wiles  V.  Gresham,  261 
Wilkins,  Bristead  v.  189 
Wilkins  v.  Bromhead,  37 
Wilkinson  v.  Adams,  322 
V.  Byers,  114 
v.  Candlish,  125 
V.  Henderson,  286 
Willett  V.  Chambers,  290 
Williams  v.  Burgess,  96 
V.  Evans,  14 
T.  Frost,  215 


INDEX   TO   ENGLISH    CASES   CITED. 


cm 


Williams  v.  Hay  ward,  212 

V.  Henshaw,  277 
V.  Moore,  73 
V.  Rawlinson,  115 
V.  Smith,  366 
V.  Symonds,  378 
V.  Thorpe,  377,  379 
V.  Tyre,  209 
Eads  V.  173 
Ex  parte,  257 
Manders  v.  26 
Williamson,  Chamberlain  v.  63 
Willing  V.  Baine,  277 
Willis  V.  Black,  271 

V.  De  Castro,  285 
V.  Hiseox,  268,  269 
Willomatt,  Cooper  v.  27 
Willott,  Staniland  v.  301 
Willoughby,  Foljambe  v.  257 
V.  Swinton,  104 
Wilmer  v.  Currey,  283 
Wilmot,  Reed  v.  46 
Wilmshurst  v.  Bowker,  43 
Wilson  v.  Brownsmith,  318 
V.  Piggott,  248,  249 
V.  Wilson,  268,  358 
Lucas  V.  175 
Todd  V.  267 
Wetherell  v.  257 
Wilton  T.  Colvin,  271 
Wiltshire,  Doran  v.  284 
Winch  V.  Keeley,  112 
Winchelsea,  Earl  of,  Deering  v.  109 
Windham,  Townsend,  Lord,  v.  345 
Windle  v.  Andrews,  81 
Windsor,  Lincoln  v.  268 
Winn  V.  Ingilby,  16 
Winnall,  Rudge  v.  17 
Wise  V.  Metcalf,  65 
Wiseman  v.  Westland,  12 

V.  Vandeputt,  42 
Witt  V.  Amis,  300 
Wolverhampton    New    Waterworks    Co.    v. 

Hawkesford,  193 
Wombwell  v.  Hanrott,  248,  249 
Wood  V.  Adcock,  173 
V.  Dixie,  49 


Wood  V.  Taunton,  178 
V.  Turner,  301 
V.  Wood,  113 
Ex  parte,  51,  130 
Gomley  v.  267 
Woodgate,  Acton  v.  274 
Wallace  v.  28 
Woodhead,  Creswick  v.  303 
Woodmeston  v.  Walke,  356 
Woods  V.  Foote,  122 
Woolfit,  Cooper  v.  17 
Woolley,  Jackson  v.  78,  285 
Worrall  v.  Jacob,  358 

V.  Johnson,  30 
Wortham  v.  Pemberton,  348 
Wren  v.  Bradley,  358 
Wright,  Cook  v.  70 

Lomas  v.  105 
Norris  v.  259 
Smailes  v.  177 
V.  Maunder,  151 
V.  Morley,  350 
Wrightson  v.  Bywater,  173 
Wyatt,  Roberts  v.  24 
Wynne,  Hughes  v.  103,  375 


Yates,  Bridge  v.  277 

Dixon  V.  36,  41,  43 
Sherrington  v.  346 
Ward  V.  349 

Tea  V.  Field,  10 

Yeoman  v.  Bradshaw,  105 

Young  V.  Axtell,  288 
V.  Walker,  174 
V.  Waterpark,  248 
Ex  parte,  51 
Hazleham  v.  290 
Lee  V.  261 

Younge,  Meacher  v.  256 


Zachary  v.  Shepherd,  175 
Zwinger  v.  Samuda,  35 


PRINCIPLES 


LAW  OF  PERSONAL  PROPERTY. 


INTRODUCTORY  CHAPTER. 

OF  THE  SUBJECTS  AND  NATURE  OF  PERSONAL  PROPERTY. 

The  English  law  of  property  is  divided  into  two  great  branches, 
the  law  of  real  property,  and  the  law  of  personal  property.  The 
feudal  rules,  which  respected  the  holding  and  culture  of  land, 
were  the  elements  of  the  common  law  of  real  property;  the  rules 
relating  to  the  disposition  of  goods  were  the  origin  of  the  law  of 
personal  property.  Such  property  was  anciently  of  little  impor- 
tance, and  its  laws  were  consequently  few  and  simple.  It  did  not, 
however,  escape  the  ecclesiastical  influence  which  spread  so 
widely  in  the  middle  ages;  and  it  has  thence  derived  that  sub- 
jection to  the  rules  of  the  civil  law  by  which  it  is  characterized 
when  transmitted  by  will  or  distributed  on  intestacy. 

The  division  of  property  into  real  and  personal,  though  now 
well  recognized,  and  constantly  referred  to  even  in  the  acts  of 
the  legislature,  is  comparatively  of  modern  date.  In  ancient 
times,  property  was  divided  into  lands,  tenements,  and  hereditaments 
on  the  one  hand,  and  goods  *and  chattels  on  the  other.  These  ^^^, 
two  last  terms  appear  to  be  synonymous.  In  process  of  time,  '-  "-" 
however,  certain  estates  and  interests  in  land  grew  up,  which 
were  unknown  to  tlie  ancient  feudal  system,  and  could  not  con- 
veniently be  subjected  to  its  rules.     Of  these  the  most  important 

4 


50  INTRODUCTORY   CHAPTER. 

were  leases  for  years.*  Such  interests,  therefore,  were  classed 
among  chattels ;  but  as  they  savored,  as  it  was  said,  of  the  realty, 
they  acquired  the  name  of  chattels  real.{a)  In  more  modern 
times,  chattels  real  have  been  classed,  with  other  chattels,  within 
the  division  of  personal  property;  but  as  chattels  real,  though 
personal  property,  are  in  fact  interests  in  land,  the  laws  respecting 
them  have  been  noticed  in  the  author's  treatise  on  the  Principles 
of  the  Law  of  Real  Property.(6)  Chattels  real  will  therefore  be 
only  incidentally  noticed  amongst  the  subjects  treated  of  in  the 
present  work. 

When  leases  for  years,  and  other  incidents  in  land  of  the  like 
nature,  were  admitted  into  the  class  of  chattels  as  chattels  real,  it 
became  necessary  that  such  goods  as  had  previously  constituted 
the  whole  class,  should  be  distinguished  from  them  by  some 
further  name ;  and  the  title  of  chattels  fersoiml  was  accordingly 
applied  to  all  such  chattels  as  did  not  savor  of  real  estate.  For 
this  title,  the  choice  of  two  reasons  is  given  to  the  reader  by 
Sir  Edward  Coke,  "  because,  for  the  most  part,  they  belong  to 
the  person  of  a  man,  or  else  for  that  they  are  to  be  recovered 
by  personal  actions."(c)^     The  former  of  these  two  reasons  has 

(a)  Co.  Litt.  118  b. 

(b)  Principles  of  the  Law  of  Real  Property,  315,  et  seq.,  1st  ed.  ;  307,  2d  ed.  j  322,  4th 
ed.  ;  333,  5th  ed.  ;  350,  6th  ed. 

(r)  Co   Litt.  118  b. 


1  A  lease    for   any  number  of  years  is,  in  estates,  renewable  forever,  are  subject  to  the\ 
the  common  law,  of  no  higher  dignity  than  same  law  of  descent  and  distribution  as  es- 1 
a  lease  or  term  for  one  year.     Both  are  mere  tates  in  fee.      See  Northern   Bank   of  Ken- 
chattels  and  pass  to  the  personal  representa-  tucky  v.  Roosa,  13  Ohio  R.  334. 
lives  of  a  decedent;   7  Smedes  &  Marshall's  In  relation  to  terms  to  attend  the  inherit- 
R.  p.  479  ;  Gay's  Case,  5  Mass.  R.  419  ;  Rey-  ance,  although  on  the  death  of  the  ancestor, 
nold's  Heirs  v.  Com'rs  of  Stark  Co.,   5  Ohio  the  legal  title  to  these  vests  in  his  personal 
R.   204  ;  Lessee  of   Bisbee  v.   Hall,   3  *0.  R.  representatives,  yet  in  equity  they  belong  to 
499;  Brewster  «.  Hill,  1   N.  Hamp.  R.  351.  the  heir,  and  are  considered  part  of  the  in- 

1    In  Massachusetts,  by  the  Revised  Statutes  of  heritance ;  Lovet  v.  Needham,  2  Vern.  138  ; 

\  1860,  ch.  90,  §  20,  p.  471,  it  is  declared  that  Whitchurch  v.  Whitchurch,  2  P.  Wms.  236  ; 

i  the  lessees  and  assignees  of  lessees  of  real  Villiers  v.  Villiers,  2  Atkins,  71  ;   Maundrell 

\  estate,  for  the  term  of  one  hundred  years  or  v.    Maundrell,    7   Ves.  Jr.   R.    577  ;  and  see 

/  more,  in  cases  where  there  is  an  unexpired  post  p.  236,  note  (I). 

residue  of  fifty  years  or  more  of  the  term,  ^    However    unimportant    any    discussion 

shall   be   regarded    as   freeholders,    and   the  may  be  as  to  the  origin  of  the  term  personal, 

estate  subject  like  freehold  estates  to  descent,  as  ascribed  to  chattels,  it  is  conceived  that 

devise,  dower,    and    execution.       In    Ohio,  the  reason   of  the  designation   as  given   by 

Revised  Statutes,   1860,  ch.  36,  §  20,  p.  505,  Blackstone,  is  the  correct  one.     All  chattels 

and  ch.  87,  §  1,  p.  1142,  permanent  leasehold  formerly  known  to  the   law  were   by  their 


OF   THE    SUBJECTS   AND   NATURE    OF    PERSONAL    PROPERTY.        51 

been  chosen  by  Mr.  Justice  Blackstone.(6?)  But  it  is  submitted 
that  the  latter  reason  is  most  probably  the  true  one.  •  When  goods 
and  chattels  began  to  be  called  personal,  they  had  become 
*too  numerous  and  important  to  accompany  the  persons  of  ^  ^ 
their  owners.  On  the  other  hand,  the  bringing  and  defending 
of  actions  has  always  been  the  most  prevailing  business  of  law- 
yers ;  from  the  different  natures  of  actions,  the  nomenclature  of 
the  law  is  therefore  most  likely  to  have  proceeded.  Now  actions 
were  long  divided  into  three  classes, — real  actions,  personal 
actions,  and  mixed  actions.  Real  actions  were  brought  for  the 
recovery  of  lands,  and  by  their  aid,  the  real  land  was  restored  to 
its  rightful  owner.  Mixed  actions,  as  their  name  imports,  were 
real  and  personal  mixed  together.  Personal  actions  were  brought 
in  respect  of  goods,  for  which,  as  they  are  in  their  nature  de-  1 
structible,  nothing  but  pecuniary  damages  could  with  certainty  i 
be  recovered  from  the  person  against  whom  the  action  was  « 
brought.  Accordingly,  by  the  ancient  law  of  England,  there 
never  were  more  than  two  kinds  of  personal  actions  in  which 
there  was  a  possibility  of  recovering,  by  the  judgment  of  the 
court,  the  identical  goods  in  respect  of  which  the  action  was 
brought.  One  of  these  was  the  action  of  detinue,  where  goods, 
having  come  into  a  man's  possession,  were  unlawfully  detained 
by  him:  in  which  case,  however,  the  judgment  was  merely  con- 
ditional, that  the  plaintiif  recover  the  said  goods,  or  {if  they  could 
not  be  had)  their  respective  values,  and  also  the  damages  for  de- 
taining them.(e)  The  other  was  the  action  of  replevin,  brought 
for  goods  which  had  been  unlawfully  distrained ;  but  in  this  case 
the  goods  were  never  beyond  the  custody  of  the  sheriff",  who  is 
an  officer  of  the  law,  and  their  safe  return  could  therefore  be 
8ecured.(/)*     Goods  therefore  seem  to  have  been  called  personal, 

(d)  2  Black.  Com.  16,  384  ;  3  Black.  Com.  144.  (/)  Ibid.  146. 

(e)  3  Black.  Com.  152. 

nature  movable,    and  a  very  large  class  of  of  the  actual  domicll    of  the  owner.     This 

them,   such   as   debts,    obligations,    and    the  would  seem  to   be  a  more  probable  reason, 

like,  had  no  tangible  existence,  and  were  sup-  than  the  mere  fact  of  their  being  the  subject 

posed  by  the  law  to  "  attend  the  person,"  and  of  actions  called  personal, 

are    subject   to    the    incidental    laws   of    the  i  In  the  United  States  generally,  the  ac- 

doraicil  of  the  owner,  in  the  case  of  intestacy  tion  of  replevin   lies,    wherever   one  claims 

and  insolvency;  while  real  estate  being  im-  goods  in  the  possession  of  another  (see/w.v/),  ; 

movable,    is    only   governed   by   the  laws  of  and  on   a  claim   of  property,   the  defendant 

the  place  where  it  is  situated,  independently  can  retain   the  goods  if  he  gives  security  to 


52 


INTRODUCTORY    CHAPTER. 


^ — because  the  remedy  for  their  abstraction  was  against  the  person 
'    who  had  taken  them  away,  or  because,  in  the  words  of  Lord 


produce  them,  and,  where  the  property  is  so 

retained,  the  plaintiff's  right  is  turned  into  a 

chose  in  action,  and  his  right  to  the  property 

absolutely  gone  ;   Fisher  v.  Whoolery,  25  Pa. 

St.  R.  197  ;  and  see  also,  Pugh  v.  Calloway, 

10  0.  R.  (N.  S.)  488  ;  but  even  in  England 

it  was  not   formerly  the  case,  as  is  stated  in 

text,  that  the  goods  were  in  the  custody  of 

the  sheriff;    1  Saund.   (by  Williams)  347  a, 

note  2.    See  also  12  Mass.  R.  180,  note. 

I      In  New  York,  replevin  lies  for  any  tortious 

I  taking  of  goods  ;   Pangburn  v.  Partridge,   7 

I  Johns.  R.   140  j  Gardner  v.  Campbell,  15  Id. 

'  402;   Mills  v.    Martin,    19   Id.  31;  Clark  i;. 

Skinner,   20  Id.  467;  Judd  v.  Fox,    9  Cow. 

R.  259  ;  Dodworth  v.  Jones,  4  Duer"s  R.  201. 

But  it  will  not  lie  for  illegal  detention  of 
property,  where  the  party  comes  to  possession 
by  delivery  from  a  person  having  a  special 
property  in  the  goods  ;  Marshall  v.  Davis,  1 
Wendell's  R.  109. 

As  against  wrongdoers  and  trespassers,  it 
has  been  decided  in  North  Carolina,  that  a 
paramount  right  of  property  is  not  necessary 
to  support  the  action,  but  a  naked  possession, 
or  a  right  of  possession  coupled  with  the 
beneficial  interest,  will  be  suflScient ;  Fresh- 
water V.  Nichols,  7  Jones's  Law  R.  251. 
f  In  Pennsylvania,  wherever  one  man  claims 
I  goods  in  the  possession  of  another,  replevin 
will  lie  ;  Weaver  v.  Laurence,  1  Dall.  R. 
157;  Shearick  v.  Huber,  6  Binn.  R.  3; 
Stoughton  V.  Rappalo,  3  Serg.  &  Raw.  R. 
562  ;  Snyder  v.  Vaux,  2  Raw.  R.  428  ;  Pearce 
V.  Humphries,  14  Serg.  &  Raw.  R.  25 ; 
Bower  «.  Tallman,  5  Wat.  &  Serg.  R.  561 ; 
Harlan  v.  Harlan,  15  Pa.  State  R.  513  ;  Boyle 
V.  Rankin,  22  Id.  168  ;  but  se»  Bonsall  v. 
Comly,  44  Id.  442.  It  is  effectual  for  the 
delivery  of  personal  property  only  ;  Roberts 
V.  Dauphin  Deposit  Bank,  19  Id.  71;  and 
it  will  not  lie  by  one,  claiming  land  against 
another  in  the  actual  adverse  possession 
thereof,  under  claim  of  title  for  fixtures, 
aliter,  where  there  is  no  claim  of  adverse 
title;  Mather  v.  Trin.  Church,  3  Serg.  & 
Raw.  R.  509  ;  Bowen  v.  Caldwell,  10  Id.  114; 
Harlan  v.  Harlan,  15  Pa.  St.  R.  513. 

In  Massachusetts,  it  has  been  held  that  as 
a  general  principle  the   owner  of  a  chattel 


may  take  it  by  replevin  from  any  person 
whose  possession  is  unlawful,  unless  it  be  in 
the  custody  of  the  law,  or,  unless  it  had  been 
tAken  by  replevin  from  him,  by  the  party  in 
possession  ;  Ilsley  v.  Stubbs,  5  Mass.  R.  280 
In  order  to  maintain  it,  the  plaintiff  must 
have  the  right  of  property  and  of  possession,  j 
at  the  time  of  taking  or  of  suing  out  his  \ 
writ ;  Wheeler  v.  Train,  3  Pick.  R.  255 ;  j 
Walcot  V.  Pomeroy,  2  Id.  121.*  But  where' 
goods  which  had  been  leased  by  the  owner, 
were  attached  as  the  property  of  the  lessee 
while  they  were  in  his  possession  under  the 
lease,  and  the  owner  replevied  them  from  the 
officer,  and  before  judgment  the  lease  ex- 
pired, the  defendant  had  judgment  for  costs 
only,  and  not  for  a  return  ;  Wheeler  v.  Train, 
3  Pick.  R.  255.  If  goods  be  obtained  by 
means  of  false  and  fraudulent  pretences,  the 
owner  of  the  goods  may  reclaim  them  by  this 
action;  Buifington  v.  Gerrish,  15  Mass.  R., 
156.  So  replevin  will  lie  for  goods  which  are 
unlawfully  detained,  though  the  taking  be 
lawful:  Badger  v.  Phinney,  15  Mass.  R. 
359  ;  Baker  v.  Fales,  16  Id.  147  ;  Marston  v. 
Baldwin,  17  Id.  606.  [Co?itra,  Meany  v. 
Head,  1  Mason's  R.  319. J  And  when  goods 
are  delivered  in  pursuance  of  a  conditional 
sale,  and  the  condition  is  not  performed,  the 
vendor  may  reclaim  the  goods  by  this  action  ; 
Marston  v.  Baldwin,  17  Mass.  R.  606. 

But  if  the  property  is  not  in  the  plaintiff 
at  the  time  of  the  taking,  or  if  he  then  had 
no  right  to  the  possession  against  the  defend- 
ant, replevin  cannot  be  maintained,  unless  a 
demand  has  been  made  upon  the  defendant 
by  the  plaintiff  for  the  chattels,  since  he  ac- 
quired the  property  in  them  ;  Gates  v.  Gates, 
15  Mass.  R.  310.  Such  a  demand,  however, 
will  be  sufficient  if  made  on  the  day  of  the 
date  of  the  writ,  before  it  is  served,  although 
after  its  delivery  to  an  officer ;  Badger  v. 
Phinney,  15  Mass.  R.,  359. 

Replevin  will  not  lie  by  one  joint  owner  of 
a  chattel,  but  the  objection  can  only  be  taken 
by  a  plea  in  abatement  where  he  sues  for  the 
whole ;  Reinheimer  v.  Hemingway,  35  Pa. 
St.  R.  432.  If  he  sues  for  a  moiety  the  court 
will  abate  the  writ,  ex  officio;  D'Wolf  v. 
Harris,  4  Mason's  R.  515.     And  by  the  same 


OF    THE    SUBJECTS   AND    NATUEE   OF    PERSONAL   PROPERTY. 


53 


Coke,  they  were  "to  be  recovered  by  personal  actions.(^) 
*recent  statutes,(A)  however,  provision  has  been  made  for 
enforcing   the  delivery  of  goods,  in  actions  for  their  de- 

(g)  See  PriDciples  of  the  Law  of  Real  Property,  7. 

(A)  Stats.  17  and  28  Vict.  c.  125,  s.  78  ;  19  and  20  Vict.  c.  97,  s.  2. 


By 

[*4] 


case  it  was  held,  that  an  assignment  of  goods 
at  sea  and  their  proceeds,  if  bona  fide,  is  suf- 
ficient to  pass  the  legal  title  to  the  goods,  and 
also  to  the  proceeds,  so  that  replevin  will  lie 
)  for  the  latter. 

In  Pennsylvania,  if  trees  cut  down  be  con- 
verted by  defendant  into  rails  and  posts,  this 
is  not  such  an  alteration  of  the  property  as 
will  prevent  recovery  in  replevin  ;  Snyder  v. 
Vaux,  2  Rawle's  R.  423  ;  and  see  Lee  v. 
Gould,  47  Pa.  St.  R.  398. 

In  Maine,  either  a  general  or  special  own- 
ership of  property  will  sustain  the  action  : 
School  Dist.  No.  5  v.  Lord,  44  Maine  R. 
374 ;  and  it  may  be  maintained  for  goods 
unlawfully  detained,  though  the  taking  was 
lawful;  Seaver  u.  Dingley,  4  Greenleaf "s  R. 
306 ;  but  there  must  be  a  demand  for  the 
article  and  refusal  to  deliver  in  this  case,  or 
other  evidence  of  conversion  ;  Newman  v. 
Jeune,  47  Maine  R.  520. 

In  New  Jersey,  where  goods  are  so  taken 
as  to  entitle  the  owner  to  an  action  of  tres- 
pass, replevin  can  be  maintained  ;  Bruen  v. 
Ogden,  6  Halst.  R.  370  ;  or,  for  goods  taken 
and  unlawfully  detained  ;  Nixon's  Dig.,  edit. 
1861,  p.  728;  but  there  must  be  both  the 
unlawful  taking  and  the  unlawful  detention  ; 
Harwood  v.  Smethurst,  5  Dutch.  R.  195. 
And  it  will  lie  for  such  articles  as  "mills, 
barns,  steam  engines,  offices  and  sheds  ;" 
Breasley  v.  Cox,  4  Zabr.  287. 

In  Ohio,  replevin  lies  in  all  cases  un- 
less excepted  by  statute  ;  Stone  v.  Wilson, 
Wright's  R.  159. 

In  Indiana,  demand  may  be  necessary 
where  the  defendant  has  goods  by  license  of 
the  plaintiff;  but,  where  there  is  a  wrongful 
possession  of  goods,  as  where  they  were  ob- 
tained by  fraud,  force,  or  otherwise  without 
the  owner's  consent,  no  demand  need  be 
made  ;  8  Blackf.  R.  244. 

In  Delaware,  it  may  be  used  wherever  one 
claims  persona!  property  in  possession  of 
another;    Clark    r.    Adair,    3  Har.    R.    113. 


A  purchaser  at  sheriff's  sale  may  maintain 
replevin  after  demand  and  refusal.  16  Id. 
62. 

In  Maryland,  replevin  lies  in  all  cases 
where  the  plaintiff  seeks  to  try  the  title  to 
personal  property,  and  recover  its  possession. 
Brooke  v.  Berry,  1  Gill's  R.  163. 

In  Kentucky,  it  will  not  lie  to  recover 
goods  held  adversely  to  plaintiff;  Dillon  v. 
Wright,  J.  J.  Marsh.  R.  10  ;  nor  where  the 
legal  title  is  not  in  the  plaintiff;  Daniel  v. 
Daniel,  6  B.  Mon.  R.  231. 

In  Missouri,  replevin  will  lie  for  goods  un- 
lawfully taken  or  detained  when  trespass 
will  ;  Skinner  v.  Stouse,  4  Mo.  R.  93 ; 
Crocker  v.  Man,  3  Mo.  R.  345,  472 ;  but  the 
plaintiff  must  have  the  title  to  the  property 
or  the  right  of  possession ;  Pilkington  v. 
Trigg,  28  Missouri  R.  95. 

In  Tennessee,  to  support  replevin,  the 
plaintiff  must  show  right  of  possession  as 
against  the  defendant  ;  Bogard  v.  Jones,  9 
Hump.  R.  739;  Bradley  v.  Mitchell,  1 
Smith's  R.  346  ;  Shaddon  v.  Knott,  2  Swan's 
R.  358. 

In  Arkansas,,  under  the  Revised  Statutes 
(same  as  that  of  New  York  on  replevin),  re- 
plevin may  be  maintained  for  an  unlawful 
taking  or  detention  of  a  chattel,  but  the 
plaintiff  must  show  title  ;  Beebe  v.  De  Baun, 
3  Eng.  R.  566 ;  Rev.  Stat.  695 ;  Cox  v. 
Marrow,  14  Ark.  R.  603.  The  owner  of 
property  may  bring  replevin  against  a  pur- 
chaser, where  his  property  has  been  sold 
under  execution  against  a  third  person  ;  3 
Eng.  R.  83.  As  in  New  York,  possession  of 
chattels  and  actual  wrongful  taking  by  de- 
fendant, will  support  replevin.  It  may  be 
brought  wherever  trespass  de,  bonis  asportatis 
will  lie  ;  Trapnall  v.  Hattier,  1  Eng.  R.  21. 

In  Virginia,  replevin  is  confined  by  stat- 
ute (1823)  to  cases  of  distress  for  rent;  1 
Robinson's  Pr.  408. 

As  also  in  Mississippi  ;  Wheelock  v.  Coa- 
zens,   6  Howard's  R.    279 ;   and  to  maintain 


54  INTRODUCTORY   CHAPTER. 

tention  or  for  breach  of  contract  to  deliver  them  for  a  price  in 
money;  and  if  they  cannot  be  found,  all  the  lands  and  chattels  of 
the  defendant  may  be  distrained  till  they  are  delivered. 

Chattels  personal,  then,  are  the  subjects  of  the  present  treatise. 
In  ancient  times  they  consisted  entirely  of  movable  goods,  visi- 
ble and  tangible  in  their  nature,  and  in  the  possession  either  of 
the  owner  or  of  some  other  person  on  his  behalf.  I^Tothing  of 
an  incorporeal  nature  was  anciently  comprehended  within  the 
class  of  chattels  personal.  In  this  respect  the  law  of  personal 
property  strikingly  differs  from  that  of  real  property,  in  which, 
from  the  earliest  times,  incorporeal  hereditaments  occupied  a 
conspicuous  place.  But  although  there  was  formerly  no  such 
thing  as  an  incorporeal  chattel  personal,  there  existed  not  unfre- 
quently  a  right  of  action,  or  the  liberty  of  proceeding  in  the 
courts  of  law  either  to  recover  pecuniary  damages  for  the  in- 
fliction of  a  wrong  or  the  non-performance  of  a  contract,  or  else 
to  procure  the  payment  of  money  due.  Such  a  right  was  called, 
in  the  Xorman  French  of  our  early  lawyers,  a  chose  or  thing  in 
action^  whilst  movable  goods  were  denominated  choses  in  posses- 
sion. Choses  in  action,  though  valuable  rights,  had  not  in  early 
times  the  ordinary  incident  of  property,  namely,  the  capability  of 
being  transferred;*  for,  to  permit  a  transfer  of  such  a  right  was, 

the  action  under  the  statute  of  1842,  it  is  chattels    unlawfully    taken.     Waterman    v. 
necessary  that  the  plaintiff  should  have  the  Matteson,  4  R.  I.  R.  539. 
right  to  immediate  possession,  as  at  common  i  A  right  of  action  for  a  tort  is  not  assign- 
law  ;  27  Miss.  R.  198.  able;  Gardner  v.  Adams,  12  Wend.  R.  297; 

The  writ  lies  in  Michigan  and  Illinois  by  Com.  v.  Tuqua,  3  Litt.  R.  41  ;  Comegys  v. 

statute,   for  goods  wrongfully  taken  or  de-  Vasse,  1  Peters's  R.  12.3 ;  People  r.  Tioga,  19 

tained  ;     2    Compiled     Lists     of    Michigan  Wend.  R.  73 ;    Oliver  v.  Walsh,    6  Gal.  R. 

(1857),  p.  1330;  Statutes  of  Illinois  (1858),  258;    and  this   is    true  even    after  verdict ;  i 

p.  226.  Brooks  v.  Hanford,  15  Abbott's  Pa.  R.  342. 

In  Iowa,  if  the  plaintiff  is  not  entitled  to  But    a   cause    of  action,    to   recover  money 

present  possession,  he  cannot  prevail  ;   Ma-  which  plaintiff  had  been  induced   to  pay  to 

rienthal  v.  Shafer,  6  Clarke's  R.    223  ;  and  defendant,  by  means  of  false  representations 

if  the  possession  of  the  defendant  was  right-  made  by  the  latter,  is  assignable  :   Byxbie  v. 

ful  at  its  inception,  the  plaintiff  must  make  Wood,  24  N.  Y.  R.  607;   and   by  a  statute  of 

a  demand  before   bringing  his  action ;    Gil-  1858  of  the  State  of  New  York,  the  right  of 

Christ  V.  Moore,  7  Clarke's  R.  9.  action  which   one  has  who  has  been  induced 

In  Rhode  Island,  the  action  of  replevin  is  by  fraud  to  execute  a  conveyance  and  part 

maintainable,  by  virtue  of  the  statute  "reg-  with   the   possession   of   real  estate,   may  be 

nlating  proceedings  in  replevin,"   for  goods  assigned  ;    McMahon  v.   Allen,  34  Barb.  R. 

and  chattels  unlawfully  detained,  though  not  275.     And   see  Weire  v.  Davenport,  11  Iowa 

unlawfully  taken,  as  well  as  for  goods  and  R.  49. 


OF    THE    SUBJECTS   AND    NATURE   OF    PERSONAL    PROPERTY. 


55 


in  the  simplicity  of  the  times,  thought  to  be  too  great  an  encour- 
agement to  litigation  ;(i)  and  the  attempt  to  make  such  a  transfer 
involved  the  guilt  of  maintenance  or  the  maintaining  of  another 
person  in  his  suit.  It  was  impossible,  however,  that  this  simple 
state  of  thinors  should  *long  continue.  Within  the  class  of  ^ .  r-i 
choses  in  action  was  comprised  a  right  of  growing  impor-  ^  -' 
tance,  namely,  that  of  suing  for  money  due,  which  right  is  all  that 
constitutes  a  debt.  That  a  debt  should  be  incapable  of  transfer 
was  obviously  highly  inconvenient  in  commercial  transactions; 
and  in  early  times  the  custom  of  merchants  rendered  debts  se- 
cured by  bills  of  exchange  assignable  by  indorsement  and  deliv- 
ery* of  the  bills.    But  choses  in  action,  not  so  secured,  could  only 

(«■)  10  Rep.  48  a. 


The  general  rule  is,  that  personal  torts 
which  die  with  the  party  and  do  not  survive 
to  personal  representatives,  are  incapable  of 
passing  by  assignment ;  Comegys  v.  Vasse, 
1  Peters's  R.  193  ;  North  v.  Turner,  9  Serg. 

6  Raw.  R.  244  ;  Sommers  v.  Wild,  4  Id. 
19;  O'Donnell  v.  Seybert,  13  Id.  54;  Free- 
man V.  Newton,  3  E.  D.  Smith's  R.  246; 
Grant  v.  Ludlow,  8  0.  R  (N.  S.),  1 :  and  the 
converse  has  been  held  true  ;  Sears  v.  Con- 
over,  34  Barb.  R.  330  ;  Gould  v.  Gould,  36 
Id.  270.  In  New  York,  it  has  been  held  that 
the  right  of  a  mother  in  the  damages  given 
by  the  statute  of  1847,  for  the  death  of  her 

.,80n,  is  capable  of  assignment ;  Quin  v.  Moore, 
15  N.  Y.  R.  432. 

But  other  choses  in  action  may  be  assign- 
ed in  equity  ;  Dix  v.  Cobb,  4  Mass.  R.  511 ; 
Parker  i;.  Grout,  11  Id.  157,  note;  Wheeler 
#.  Wheeler,  9  Cow.  R  34;  Eastman  v. 
Wright,  6  Pick.  R.  316;  Welch  v.  Mande- 
ville,   1  Wheat.  R.    2.'?6 ;  Brackett  v.  Blake, 

7  Mete.  R.  335  ;  Fletcher  v.  Prait,  7  Blackf. 
R.  522;  Powell  v.  Powell,  10  Ala.  R.  900; 
Wooden -y.  Butler,  10  Miss.  R.  716;  Blierf. 
Pierce,  20  Vt.  R.  25;  26  Maine  R.  448; 
Merriweather  v.  Herran,  8  B.  Mon.  R.  162; 
29  Maine  R.  9  ;  Kerr  v.  Day,  2  liar.  R.  212  ; 
Anderson  v.  De  Soer,  6  Gratt.  R.  303  ;  En- 
sign V.  Kellogg,  4  Pick.  R.  1  ;  Champion  v. 
Brewer,  6  Johns.  Chan.  R.  398  ;  Lowry  v. 
Tew,  3  Barbour  Ch.  R.  407;  Mitchell  v. 
Manufacturing  Co.,  2  Story's  R.  660;  Cal- 
kins r.  Lockwood,  14  Conn.  R.    226;  Canna- 


day  V.  Shepard,  2  Jones's  L.  R.  224;  and  an 
oral  transfer,  with  notice  from  the  assignee 
to  the  debtor,  has  been  held  sufiBcient;  Noyes 
V.  Brown,  33  Vt.  R.  431  ;  the  assignee  takes 
subject  to  the  equities  of  him  who  issued  the 
security  assigned  ;  Bush  v.  Lathrop,  22  N. 
Y.  R.  535  ;  Robert  v.  Carter,  24  How.  Pr.  R. 
44;  Faull  V.  Tinsman,  36  Pa.  St.  R.  108; 
Smith  V.  Rogers,  14  Ind.  R.  224  ;  Eldred  v. 
Hazlett,  33  Pa.  St.  R.  307;  Warner  v. 
Whillaker,  6  Mich.  R.  133;  Cornish  v. 
Bryan,  2  Stockt.  R.  146  :  Horstman  v. 
Gerker,  49  Pa.  St.  R.  281. 

A  contingent  debt  may  be  assigned  in 
equity ;  Crocker  v.  Whitney,  10  Mass.  R. 
316;  and  a  judgment  and  execution  ;  Dunn 
V.  Snell,  15  Mass.  R.  481  ;  Allen  v.  Holden, 
9  Id.  133;  Brown  v.  Maine  Bk.,  11  Id. 
153  ;  Pearson  v.  Talbot,  4  Litt.  R.  435  ; 
Vanhouten  v.  Reilly,  6  Smedes  &  Marsh.,  R. 
440;  Faull  V.  Tinsman,  36  Pa.  St.  R.  108; 
McDonald  v.  McDonald,  5  Jones's  Eq.  R. 
211. 

To  make  an  assignment  valid  at  law,  that 
which  is  the  subject  of  it  must  have  an  ex- 
istence actual  or  potential  at  the  time  of 
assignment ;  Mitchell  v.  Winslow,  2  Story's 
R.  630. 

An  interest  created  by  a  pledge  of  personal 
property  can  be  assigned  ;  Russell  t).  Fillmore, 
15  Vt.  R.  130. 

The  legal  interest  in  a  judgment  is  not 
assignable,  either  by  statute  or  comuion  law  , 
Richardville  v.  Cummins,  5  Bluckf.  R.  48. 


56 


INTRODUCTORY   CHAPTER. 


be  sued  for  by  tlie  original  creditor,  or  the  person  who  first  had 
the  right  of  action.  In  process  of  time,  however,  an  indirect 
method  of  assignment  was  discovered,  the  assignee  being  em- 
powered to  sue  in  the  name  of  the  assignor ;  and  in  the  reign  of 
Henry  VII,  it  was  determined  that  a  "  chose  in  action  may  be 
assigned  over  for  Lawful  cause  as  a  just  debt,  but  not  for  main- 
tenance, and  that  where  a  man  is  indebted  to  me  in  £20,  and 
another  owes  him  £20  by  bond,  he  may  assign  this  bond  and 
debt  to  me  in  satisfaction,  and  I  may  justify  for  suing  it  in  the 

(j)  Bro.  Abr.  Chose  in  Action,  pi.  3,  15  Hen.  VII,  2 


'  The  assignee  of  a  chose  in  action,  Has  an 

equitable  right,  enforceable  at  law,  in  the 
assignor's  name  ;  Dix  v.  Cobb,  4  Mass  R. 
511;  Parker  v.  Grout,  11  Id.  157,  note  ; 
Wheeler  v.  Wheeler,  9  Cow.  R.  34;  East- 
man V.  Wright,  6  Pick.  R.  316  ;  Welch  v. 
Manderville,  1  Wheat.  R.  236  ;  Hendrick  v. 
Glover,  Geo.  Decis.  part  1,  63  ;  Marcune  v. 
Hereford,  8  Dana's  R.  1 ;  Dunklin  v.  Wil- 
kins,  5  Ala.  R.  109 ;  Rawson  v.  Jones,  1 
Scam.  R.  291 ;  Van  Houten  v.  Reily,  6 
Smedes  &  Marsh.  R.  440 ;  Broughten  v. 
Badgett,  1  Kelly's  R.  75 ;   Sims  v.  Radcliffe, 

3  Rich.  R.  287  ;  Pollard  v.  Somerset,  Mut. 
Fire  Ins.  Co.,  42  Maine  R.  221.  But  the 
assignee  of  a  bond  cannot,  at  common  law, 
sue  thereon  in  his  own  name  ;  Skinner  v. 
Somers,  14  Mass.  R.  107;  Smock  v.  Taylor, 
Coxe's  B.  177;  Sheppard  «.  Stites,  2  Halst. 
R.  94 ;  Sayre  v.  Lucas,  2  Stew.  R.  259 ; 
Flanagan  v.  Camden  Mutual  Insurance  Co.,  1 
Dutch.  R.  506. 

The  bearer  of  a  negotiable  promissory  note 
may  sue  on  it  in  his  own  name  ;  Mauran  v. 
Lamb,  7  Cowen's  R.  174  ;   Pearce  v.  Austin, 

4  Wharton's  R.  489;  Barbarin  v  Daniels, 
7  Louis.  Rep.  481  ;  Denton  v.  Duplesis,  12 
Id.  92  ;  Hill  v.  Holmes,  Id.  96  ;  Story  on 
Prom.  Notes,  465;  Rankin  t).  Woodworth,  2 
Watt's  R.  134:  LeidytJ.  Tammany,  9  Id.  353. 

If  a  negotiable  note  be  assigned  and  de- 
livered, for  a  valuable  consideration,  without 
indorsement,  the  title  passes,  and  the  assignee 
may  recover  in  the  name  of  the  payee  ;  Jones 
If.  Willett,  3  Mass  R.  304.  But  a  certificate 
of  deposit  payable  to  the  depositor,  or  order, 
in  currency,  is  not  a  negotiable  instrument, 
and  the  indorsee  thereof  cannot  maintain  an 


action  upon  it  in  his  own  name  ;  Loudon,  Ac. 

Soc.  V.  Hagerstown,  &c.  Bk.,  36  Pa.  St.  R. 
498. 

And  "  the  holder  of  bonds  issued  by  a  cor- 
poration, payable  to  bearer,  may  maintain 
an  action  on  them  in  his  own  name.  Such 
bonds  are  not  strictly  negotiable  under  the 
law  merchant,  as  are  promissory  notes  and 
bills  of  exchange.  They  are,  however,  in- 
struments of  a  peculiar  character,  and  being 
expressly  designed  to  be  passed  from  hand  to 
hand,  and  by  common  usage  actually  so 
transferred,  are  capable  of  passing  by  deliv- 
ery so  as  to  enable  the  holder  to  maintain 
an  action  on  them  in  his  own  name.  Posses- 
sion is  prima  facie  evidence  of  ownership  ;" 
Carr  v.  Le  Fevre,  27  Pa.  St.  R.  418.  And 
see  also  on  the  same  subject,  Gregory  v.  Do- 
zier,  6  Jones's  Law  R.  4  ;  Morris  Canal  Co. 
z;.  Fisher,  1  Stockt.  R.  667;  McCoy  u.  The 
County,  7  Am.  L.  Reg.  193;  Mercer  Co.  v. 
Hacket,  1  Wallace's  U.  S.  R.  83;  Gelpcke 
V.  Dubuque,  Id.  176  ;  Meyer  v.  Muscatine, 
Id.  384;  Murray  v.  Lardner,  2  Id.  110* 
Co.  of  Beaver  v.  Armstrong,  8  Pa.  St.  R. 
63.  Where  bonds  were  issued  by  a  railroad 
company  in  blank,  it  was  held  by  the  Supreme 
Court  of  the  United  States  to  be  the  intention 
of  the  company  to  make  the  bonds  negotia- 
ble and  payable  to  the  holder  as  bearer,  and 
that  the  holder  might  fill  up  the  blank  with 
his  own  name,  or  make  them  payable  to  him- 
self or  bearer,  or  order.  White  v.  Vt.  <fe 
Mass.  R.  R.  Co.,  21  How.  R.  575. 

A  right  to  property  held  adversely,  or  a 
right  growing  out  of  an  executory  contract^ 
is  unsusceptible  of  legal  assignment  ;  Greely 
V.  Willcocks,  2  Johns.  R.  1. 


OF   THE    SUBJECTS   AND   NATURE   OF   PERSONAL   PROPERTY.       57 

name  of  the  other  at  my  own  eost."(jy  Choses  in  action,  having 
now  become  assignable,  became  an  important  kind  of  personal 
property;  and  their  importance  was  increased  by  an  act  of  the 
following  reign, (A;)  whereby  the  taking  of  interest  for  money, 
which  had  previously  been  unlawful,  was  rendered  legal  to  a 
limited  extent.  Loans  and  mortgages  soon  became  common, 
forming  a  kind  of  incorporeal  personal  property  unknown  to  the 
ancient  law.  In  the  reign  of  Queen  Anne,  promissory  notes  were 
rendered,  by  act  of  Parliament,  assignable  by  indorsement  and 

(k)  Stat.  37  Hen.  VHI,  c.  9. 


An  obligation  of  record,  or  under  seal,  may 
be  equitably  assigned  by  a  writing,  unsealed  ; 
Morange  v.  Edwards,  1  E.  D.  Smith's  K. 
414  ;  Dunn  v.  Swell,  15  Mass.  R.  485  ;  Daw- 
son V.  Coles,  16  Johns.  R.  51 ;  or  by  parol  ; 
Ford  V.  Stuart,  19  Johns.  R.  342;  Jones  v. 
Witter,  13  Mass.  R.,  304  ;  Licey  v.  Licey,  7 
Pa.  St.  R.  251  ;  Sexton  v.  Fleet,  2  Hilt.  R. 
477. 

In  New  York,  an  assignee  of  a  right  of 
action,  may  by  statute  maintain  an  action 
therefor  in  his  own  name  ;  and  the  same  is 
true  in  Massachusetts  ;  Currier  v.  Howard, 
14  Gray's  R.  511  ;  Butler  v.  N.  Y.  &  Erie 
R.  R.  Co.,  22  Barb.  R.  110  ;  but  in  New 
York  this  has  been  held  only  where  the  right 
was  assignable  at  law  or  in  equity,  before  the 
code  was  adopted  ;  and  hence  it  was  there  de- 
cided, tiiat  the  assignee  of  a  claim  for  dam- 
ages for  personal  injuries,  cannot  maintain 
an  action  in  his  own  name  ;  Purple  v.  Hud- 
son River  R.  R.  Co.,  4  Duer's  R.  74. 

In  Pennsylvania,  the  assignees  of  bonds, 
specialties,  and  notes,  can  sue  in  their  own 
names,  by  statute ;  but  such  assignments 
must  be  under  hand  and  seal,  and  executed 
in  the  presence  of  two  or  more  credible  wit- 
nesses; Purd.Dig.  edit.  1861,  p.  112,  §§3,7; 
and  this  is  true  also  in  the  State  of  Dela- 
ware ;  Kinniken  v.  Dulaney,  5  Harring.  R. 
384. 

In  New  Jersey,  the  assignee  of  a  bond  may 
maintain  an  action  thereon  in  his  own  name  ; 
Bennington  Iron  Co.  v.  Rutherford,  3  Harr. 
R.  158.  And  the  assignment  need  not  be  in 
writing ;  Allen  v.  Pancoast,  ]  Spencer's  R. 
68 ;  but  in  all  other  choses  in  action,  except 
for  the  payment  of  money,  the  assignee  can- 


not maintain  an  action  in  his  own  name  ; 
Ruckman  v.  Cutwater,  4  Dutch.  R.  571. 

In  Missouri,  by  the  Rev.  Stat.,  1853,  105, 
the  assignees  of  bonds  may  sue  in  their  own 
names,  but  the  assignment  must  be  in  writ- 
ing ;  Miller  v.  Paulsell,  8  Mo.  R.  355  ; 
Smith  V.  Schebel,  19  Id.  140. 

In  Mississippi,  the  statute  making  bonds, 
bills  single,  &c.,  assignable  by  indorsement, 
so  that  the  assignee  may  maintain  an  action 
in  his  own  name,  does  not  require  the  indorse- 
ment to  be  under  seal.  3  Smedes  &  Marsh. 
R.  647. 

In  Arkansas  (under  the  statute)  an  action 
upon  an  assigned  bond  must  be  brought  in 
the  name  of  the  assignee  ;  Block  v.  Walker, 
2  Pike's  R.  4  ;  Gamblin  v.  Walker,  1  Id. 
220. 

In  South  Carolina,  the  assignee  of  a  bond 
is  not  compelled  to  sue  in  his  own  name, 
under  the  statute ;  Coachman  v.  Hunt,  2 
Rich.  R.  450. 

In  Ohio,  the  holder  of  bonds  payable  to 
order  or  bearer,  can  sue  in  his  own  name  ; 
Logue  V.  Smith,  Wright's  R.  10. 

In  Illinois,  the  legal  interest  in  a  bond 
can  only  be  transferred  by  indorsement  in 
writing,  and  an  action  can  only  be  main- 
tained in  the  name  of  the  person  who  has 
such  legal  interest  ;  Chadsey  v.  Lewis,  1 
Gilman's  R.  153. 

In  Indiana,  under  the  new  code,  all  as- 
signees take  precisely  the  same  rights  which 
they  would  have  taken  before,  with  this  ad- 
dition, that  they  can  have  their  remedy  in 
their  own  name  ;  Patterson  v.  Crawford,  12 
Ind.  R.  241. 


58  .  INTRODUCTORY   CHAPTER. 

delivery  in  the  same  manner  as  inland  bills  of  exchange. (^)  But 
other  choses  in  action  continue  to  this  day  assignable  at  law  only 
by  empowering  the  assignee  to  sue  in  the  name  of  the  assignor. 

*In  addition  to  the  mass  of  incorporeal  personal  property, 
^  -'  which  now  exists  in  the  form  of  choses  in  action  recoverable 
by  action  at  law,  there  exist  also  equitable  choses  in  action,  or 
rights  to  be  enforced  by  suit  in  equity ;  of  these  a  pecuniary  leg- 
acy is  a  familiar  instance,  for  which,  if  the  executor  withhold 
payment,  the  .legatee  can  maintain  no  action  at  law,(m)^  but  must 
bring  a  suit  in  equity.  This  kind  of  chose  in  action  may  be 
assigned  directly  from  one  person  to  another,  and  the  assignee 
may  sue  in  equity  in  his  own  name.  For  equity,  being  of  more 
modern  origin  than  the  common  law,  is  guided  in  its  practice  by 
rules  more  adapted  to  the  exigencies  of  modern  society. 

In  modern  times  also  several  species  of  property  have  sprung 
up  which  were  unknown  to  the  common  law.  The  funds  now 
afford  an  investment,  of  which  our  forefathers  were  happily 
ignorant,  whilst  canal  and  railway  shares,  and  other  shares  in 
joint  stock  companies,  and  joatents  and  copyrights,  are  evidently 
modern  sources  of  wealth.  These  kinds  of  property  are  all  of  a 
personal  nature,  many  of  them  having  been  made  so  by  the  acts 
of  Parliament,  under  the  authority  of  which  they  have  originated. 
For  want  of  better  classification,  these  subjects  of  personal  prop- 
erty are  now  usually  spoken  of  as  choses  in  action.     They  a're,  in 

(/)  Stat.  3  and  4  Anne,  c.  9,  made  perpetual  by  stat.  7  Anne,  c.  25,  s.  3. 

(m)  Deeks  v.  Strutt,  5  T.  Rep.  690  ;  Braithwaite  v.  Skinner,  5  Mee.  &  Wells,  313.  Leg- 
acies under  fifty  pounds  may  now  be  recovered  in  the  county  courts,  under  the  acts  for  the 
more  easy  recovery  of  small  debts  and  demands  in  England,  unless  the  validity  of  the 
bequest  be  disputed.  Stats.  9  and  10  Vict.  c.  95,  ss.  58,  65 ;  13  and  14  Vict.  c.  61  ;  19  and 
20  Vict.  c.  108. 


1  An  action   at  law   for    a  pecuniary  leg-  law  will  not  lie  on  a  decree  of  the  Orphans' 

acy,    has   been    maintained    in    some    of   the  Court  for  the  payment  of  a  legacy  out  of  the 

States,  and   in   some  is   expressly   given   by  funds  in  the  hands  of  an  executor  ;  34  Pa.  St. 

statute  ;  3    Barb.    Ch.    R.    466  ;    Beeker    v.  R.  354  :  nor  to  recover  a  distributive  share  of 

Beeker,  7  John.  R.  99;  Farwell  v.  Jacobs,  a  decedent's  estate;    Ashford  v.   Ewing,   25 

4    Mass.     R.    634  ;  Pettigrew    v.    Pettigrew,  Id.   213.      In  Mississippi,    a   specific    legacy 

1.    Stew.     R.     580;    Morrow  v.   Brenizet,   2  may   be    recovered    by  an    action    at    law; 

Rawle    R.   185  ;  App  v.   Driesbach,  Id.    301.  Wooten  v.  Howard,    2  Smedes  &  Marsh.  R. 

But   in  Pennsylvania  an  action  at  common  527. 


OF   THE    SUBJECTS   AND   NATURE   OF    PERSONAL   PROPERTY.       59 

fact  personal  property  of  an  incorporeal  nature,  and  a  recurrence 
to  the  history  of  their  classification  amongst  choses  in  action  will,  as 
we  shall  hereafter  see,  help  to  explain  some  of  their  peculiarities. 
*Such  is  a  general  outline  of  the  subjects  of  modern  r-^n-y 
personal  property.  They  are  distinguished  from  real  prop-  *-  -• 
erty  by  being  unaffected  by  the  feudal  rules  of  tenure,  by  being 
alienable  by  methods  altogether  different,  by  passing  in  the  first 
instance  to  the  executors,  when  bequeathed  by  will,  and  by  de- 
volving, on  their  owner's  intestacy,  not  on  his  heir,  but  on  an 
administrator  appointed  formerly  by  the  Ecclesiastical  Court,  but 
now  by  the  Court  of  Probatef  by  whom  they  are  distributed 
amongst  the  next  of  kin  of  the  deceased.  On  the  first  of  these 
characteristics,  however,  mainly  depends  the  nature  of  the  prop- 
erty which  exists  in  things  personal.  The  first  lesson  to  be 
learned  on  the  nature  of  real  property  is  this — that  of  such  prop- 
erty there  can  be  no  such  thing  as  an  absolute  ownership;  the 
utmost  that  can  be  held  or  enjoyed  in  real  property  is  an  estate.(w) 
There  may  be  an  estate  for  life,  or  an  estate  tail,  or  an  estate  in 
fee  simple;  but,  according  to  the  law  of  England,  there  cannot 
exist  over  landed  property  any  absolute  and  independent  do- 
minion. All  the  land  in  the  kingdom  is  the  subject  of  tenure; 
and  if  the  estate  is  not  holden  of  any  subject,  at  any  rate  it  must 
be  held  of  the  crown.  With  regard  to  personal  property,  how- 
ever, the  primary  rule  is  precisely  the  reverse.  Such  property  is 
essentially  the  subject  of  absolute  ownership,  and  cannot  be  held 
for  any  estate.  It  is. true  that  the  phrase  persojial  estate  is  fre- 
quently used  as  synonymous  with  personal  property;  but  this 
general  use  of  the  term  estate  should  not  mislead  the  student  into 
the  supposition  that  there  can  be  any  such  thing  as  an  estate  in 
personalty  properly  so  called.  The  rule  that  no  estate  can  subsist 
in  personal  property  would  seem  to  have  originated  in  the  nature 
of  such  property  in  early  times.  Goods  and  chattels  of  a  personal 
kind,  in  other  words,  movable  articles,  then  formed,  as  we  have 
seen,  the  *whole  of  a  man's  personal  estate.  And  such  ar-  j-^  -. 
tides,  it  is  evident,  may  be  the  subjects  of  absolute  owner-  ^  ^ 
ship,  and  have  not  those  enduring  qualities  wliich  would  render 
them  fit  to  be  holden  b}^  any  kind  of  feudal  tenure.  As  personal 
property  increased  in  value  and  variety,  many  kinds  of  property 

(71)  Principles  of  the  Law  of  Real  Property,  JG. 


60  INTRODUCTORY   CHAPTER. 

of  a  more  permanent  nature  became,  as  we  have  seen,  comprised 
within  the  class  of  personal,  such  as  leases  for  years,  of  whatever 
length,  and  Consolidated  Bank  Annuities.  But  the  rule  that 
there  can  be  no  estate  in  chattels,  the  reason  of  which  was 
properly  applicable  only  to  movable  goods,  still  continues  to  be 
applied  generally  to  all  sorts  of  personal  property,  both  corpo- 
real and  incorporeal.  The  consequences  of  this  rule,  as  we  shall 
hereafter  see,  are  curious  and  important.  But  in  the  first  place 
it  will  be  proper  to  consider  the  laws  respecting  those  movable 
chattels,  or  choses  in  possession,  which  constitute  the  most  ancient 
and  simple  class  of  personal  property ;  the  class,  however,  which 
has  given  to  the  rest  many  of  the  rules  for  regulating  their 
disposition. 


*PART  I.  [*9] 

OF  CHOSES  m  possessio:n'. 


CHAPTER  I. 

OF    CHATTELS   WHICH    DESCEND    TO   THE    HEIR. 

Choses  in  possession  are  movable  goods,  such  as  plate,  furni- 
ture, farming  stock,  both  live  and  dead,  locomotive  engines  and 
ships.  These,  as  has  been  before  remarked,  are  essentially  the 
subjects  of  absolute  ownership,  and  cannot  be  held  by  estates; 
they  are  alienable  by  methods  altogether  different  from  those 
employed  for  the  conveyance  of  landed  property,  and  they  de- 
volve in  the  first  instance  on  the  executor  of  the  will  of  their 
owner,  or  on  the  administrator  of  his  effects,  if  he  should  die  in- 
testate. There  are,  however,  some  kinds  of  choses  in  possession 
which  form  exceptions  to  the  general  rule :  these  consist  of  cer- 
tain chattels  so  closely  connected  with  land  that  they  partake  of 
its  nature,  pass  along  with  it,  whenever  it  is  disposed  of,  and 
descend  along  with  it,  when  undisposed  of,  to  the  heir  of  the 
deceased  ow^ner.  The  chattels  which  thus  form  exceptions  are 
the  subject  of  the  present  chapter:  they  consist  principally  of 
title-deeds,  heir-looms,  fixtures,  chattels  vegetable,  and  animals  fierce 
naturee.     Of  each  in  their  order. 

Title-deeds,  though  movable  articles,  are  not  strictly  speaking 
chattels.  They  have  been  called  the  sinews  of  the  land,(a)  and 
are  so  closely  connected  with  it  that  they  will  pass,  on  a  con- 
veyance of  the  land,  without  *being  expressly  mentioned :  p^.,^-, 
the  property  in  the  deeds  passes  out  of  the  vendor  to  the  "-  ^ 
purchaser  simply  by  the  grant  of  the  land  itself. (/>)    In  like  manner 

(a)  Co.  Litt.  6  a. 

(fj)  Harrington  v.  Price,  3  Barn.  &  Adol.  170,  Eng.  C.  L.  R.,  vol.  23  ;  Philips  v.  RobinsoU; 
4  Bing.  106,  Eng.  C.  L.  R,,  vol.  13,  S.  C.  12  Moore,  308. 


62  OF   CHOSES   IN   POSSESSION. 

a  devise  of  lands  by  will  entitles  the  devisee  to  the  possession  of 
the  deeds;  and  if  a  tenant  in  fee  simple  shoulci  die  intestate,  the 
title-deeds  of  his  lands  will  descend  along  with  them  to  his  heir  at 
law.(c)  In  former  times,  when  warranty  was  usually  made  on  the 
conveyance  of  lands,((/)  the  rule  was  that  the  feoffor  should  retain 
all  deeds  containing  warranties  made  to  himself  or  to  those  whom 
he  claimed,  and  also  all  such  deeds  as  were  material  for  the  main- 
tenance of  the  title  to  the  land.(e)  But  if  the  feoffment  was 
made  without  any  warranty,  the  feoffee  was  entitled  to  the  whole 
of  the  deeds;  for  the  feoffor  could  receive  no  benefit  by  keeping 
them  nor  sustain  any  damage  by  delivering  them.(/)  "Warranties 
have  now  fallen  into  disuse;  but  the  principle  of  the  rule  above 
stated  still  applies  when  the  grantor  has  any  other  lands  to  which 
the  deeds  relate,  or  retains  any  legal  interest  in  the  lands  conveyed; 
for  in  either  of  these  cases  he  has  still  a  right  to  retain  the  deeds.(^) 
And  if  the  grantor  should  retain  merely  an  equitable  right  to  re- 
deem the  lands,  as  in  the  case  of  a  mortgage  in  fee  simple,  it  has 
been  said  that  this  equitable  right  is  a  sufficient  interest  in  the 
lands  to  authorize  him  to.  withhold  the  deeds,  unless  they  are 
expressly  granted  to  the  mortgagee,(A)  It  is  very  questionable, 
r*ni  ^*^'^^'<^^'^'*?  whether  a  legal  right  ought  to  be  attached  to  an 
interest  *merely  equitable.  And  the  doctrine  last  men- 
tioned is  opposed  by  more  recent  decisions  in  another  court.(zy 

((-)  Wentworth's  Office  of  an  Executor,  14th  ed.  153  ;  Williams  on  Executors,  pt.  2,  book 
2,  c.  3,  8.  3. 

{d)  See  Principles  of  the  Law  of  Real  Property,  344,  1st  ed.  ;  346,  2d  ed.  ;  365,  4th  ed. ; 
376,  5th  ed.  ;  399,  6th  ed. 

(«)  Buckhurst's  Case,  1  Rep.  1  b. 

(/)  1  Rep.  1  a. 

(g)  Bro.  Abr.  tit.  Charters  de  Terre,  pi.  53  ;  Yea  v.  Field,  2  T.  Rep.  708  ;  see  however 
Sagd.  Vend.  &  Pur.  367,  13th  ed.  ;   2  Prest.  Conv.  466. 

(k)  Davies  v.  Vernon,  6  Q.  B.,  443,  447;  Eng.  C.  L.  R.,  vol.  51. 

(t)  Goode  V.  Burton,  1  Exch.  Rep.  189  ;  Newton  v.  Beck,  3  H.  A  N.  220. 

^  Since  the  recording   acts,  which   are  in  case   only,"'  it  was  said  by  McKean,  C.   J., 

universal  operation  in  the  American  States,  "can  the  mortgagee  be  affected  by  suffering 

the  different  questions  which  have  arisen  in  the  title-deeds  to  remain  in  the  hands  of  the 

England   as  to  the  possession  of    title-deeds  mortgagor,  and  that  is,  where,  after  the  exe- 

have  become  coruparatively  unimportant,  as  cution  of  the  mortgage,  and  before  the  same 

the  recording  is,  in  all  cases,  for  the  purposes  is  recorded,  the   mortgagor,  on   the  strength 

of  evidence,  and  of  notice  to  subsequent  pur-  of  the    title    papers   in    his    hands,   borrows 

chasers,   made    of  the  same  validity  as  the  money  on  a  second  mortgage.     If  this  second 

production,  or  possession  of  the  title  papers  :  loan  was  made  without  knowledge  of  the  first 

Wilt  r.  Franklin,   1  Bin.   R.  522.     "In  one  incumbrance,  and  before  the  first  mortgage 


OF    CHATTELS    WHICH    DESCEND    TO    THE    HEIR.  63 

If  a  conveyance  of  lands  should  be  made  by  way  of  use,  thus, 
if  lands  should  be  granted  to  A.  and  his  heirs,  to  the  use  of  B. 
and  his  heirs,  it  is  said  that  the  title-deeds  of  the  land  will  belong 
to  A.,  the  grantee;  because,  although  the  Statute  of  Uses(j) 
conveys  the  legal  estate  in  the  lands  from  A,  to  B.,  it  does  not 
affect  the  title-deeds,  which  must  consequently  still  remain  vested 
in  A.{k)  But  this  doctrine  has  been  justly  questioned,  on  the 
ground  that  the  legislative  conveyance  from  A.  to  B.,  eflected  by 
the  Statute  of  Uses,  ought  to  be  at  least  as  powerful  as  the  com- 
mon law  conveyance  of  the  lands  to  A. ;  and  if  the  latter  con- 
veyance can  carry  with  it  the  deeds  relating  to  the  land,  the 
former  conveyance  should  be  considered  as  powerful  enough  to 
do  the  same.(/) 

The  tenant  of  an  estate  in  fee  simple  in  lands  possesses  the 
highest  interest  which  the  law  of  England  allows  to  any  subject: 
and  such  a  tenant  possesses  also  an  absolute  property  in  the  title- 
deeds,  which  he  may  destroy  at  his  pleasure,  or  sell  for  the  value 
of  the  parchment.(w)  But  if  the  lands  to  which  deeds  relate 
should  be  settled  on  any  person  for  life  or  in  tail,  a  qualified 
ownership  will  arise  with  respect  to  the  deeds,  different  in  its 
nature  from  that  simple  property  which  is  usually  held  in  chat- 
tels personal.  As  the  lands  are  now  held  for  a  limited  estate,  so 
a  limited  interest  in  the  deeds  belongs  to  the  tenant.  The  tenant 
for  life  or  in  tail,  when  in  possession  of  the  lands,  being  the 

O)  27  Hen.  VIII,  c.  10. 

(^■)  1  Sand.  Uses,  4th  ed.  119  ;  5th  ed.  117. 

(I)  Sugd.  Vend.  &  Pur.  366,  13th  ed.  ;   Co.  Litt.  6  a,  n.  (4). 

(m)  Cro.  Eliz,  496. 


was  put  into  the  recorder's  office,  then  I  their  date,  if  recorded  within  sixty  days  ;  but 
should  apprehend  the  first  mortgage  should  it  is  presumed  that  such  an  instrument  must 
be  postponed."  Evans  v.  Jones,  1  Yeates  appear  on  its  face  to  be  a  purchase  money 
R.  172.  These  remarks  were  made  under  mortgage,  and  it  may  be  doubted  if  the  lien 
the  Pennsylvania  Act  of  1715,  which  gave  of  such  a  mortgage  would  be  valid  before  the 
the  mortgagee  six  months  within  which  to  date  of  its  record,  as  against  a  subsequent 
record  his  deed,  and  if  correct,  would  apply  bona ^de  lien  creditor  or  purchaser,  having 
in  Pennsylvania  to  the  case  of  vendees,  who  no  notice  of  it,  if  the  deed  of  conveyance 
have  also  six  months.  has  been  recorded,  or  is  exhibited  to  him. 
Under  the  present  acts  of  A.ssembly  of  that  acknowledging  in  its  body  and  in  the  receipt 
State,  a  mortgage,  unless  to  secure  purchase-  at  its  foot,  payment  of  the  consideration- 
money,  is  not  a  lien  until  renorded  ;  purchase-  money.  See  Ilendriekson's  Ap.,  24  Pa.  St. 
money  mortgages  constitute  valid  liens  from  R.  366  j   Britton's  Ap.  45  Id.  172. 


64  OF   CIIOSES    IN    POSSESSION. 

freeholder  for  the  time  being,  is  entitled  also  to  the  possession  of 
j-^  the  *deeds;(w)^  whereas  the  tenant  for  a  mere  term  of 
-"  years,  of  whatever  length,  not  having  the  freehold  or  feu- 
dal possession  of  the  lands,  has  no  right  to  deeds  which  relate 
to  such  freehold  ;(o)  although  deeds  relating  only  to  the  term  be- 
long to  such  a  tenant,  and  will  pass,  without  any  express  grant, 
to  the  assignee  of  the  term.(p)  The  tenant  for  life  or  in  tail  in 
possession,  though  entitled  to  the  possession  or  custody  of  the 
deeds  which  relate  to  the  inheritance,  has  no  right  to  injure  or 
part  with  them:('7)  he  has  an  interest  in  the  title-deeds  corre- 
spondent only  to  his  estate  in  the  lands ;  and  if  he  should  part 
with  the  deeds,  even  for  a  valuable  consideration,  the  remainder- 
man, on  coming  into  possession  of  the  lands,  wdll  nevertheless 
be  entitled  to  the  possession  of  the  deeds,  just  as  if  the  tenant  for 
life  or  in  tail  had  kept  them  in  his  own  custody.(r) 

Heir-looms,  strictly  so  called,  are  now  very  seldom  to  be  met 
with.  They  may  be  defined  to  be  such  personal  chattels  as  go, 
by  force  of  a  special  custom,  to  the  heir,  along  with  the  inheritance, 
and  not  to  the  executor  or  administrator  of  the  last  owner.(.s) 
The  owner  of  an  heir-loom  cannot  by  his  will  bequeath  the  heir- 
loom, if  he  leave  the  land  to  descend  to  his  heir ;  for  in  such  a 
case  the  force  of  the  custom  will  prevail  over  the  bequest,  which, 
not  coming  into  operation  until  after  the  decease  of  the  owner,  is 

(ii)  Ford  V.  Peering,  1  Ves.  Jr.  76  ;  Strode  v.  Blackburne,  3  Ves.  225;  Garner  v.  Han- 
nyngton,  22  Beav.  627;   Allwood  tJ.  Heywood,  Exch.  11  W.  R   291. 

(o)  Churchill  v.  Small,  8  Ves.  32.3  ;  Harper  v.  Faulder,  4  Mad.  129,  138  ;  Wiseman  v. 
Westland,  1  You.  &  Jarv.  117;   Hothan  v.  Somerville,  5  Beav.  360. 

(;;)  Hooper  v.  Ramsbottom,  6  Taunt.  12,  Eng.  C.  L.  R.,  vol.  1. 

(q)  Bro.  Abr.  tit.  Charters  de  Terre,  pi.  36.  As  to  production,  see  Davis  v.  Earl  of' 
Dysart,  20  Beav.  405. 

(r)  Davies  v.  Vernon,  6  Q.  B.  443,  Eng.  C.  L.  R.,  vol.  5;  Easton  v.  London,  Exch.  12, 
W.  R.  53. 

{s)  See  Co.  Litt.  18  b. 


'  The  tenant  for  life  is  prirtia  facie  en-  Shaw,  12  Price's  Exchequer  R.,  p.  163  ;  All- 
titled  to  the  possession  of  the  title-deeds,  wood  v.  Heywood  ;  1  Hurlst  &  Colt,  R.  745. 
and  although  in  a  proper  case  the  court  will  The  right  to  title-deeds  goes  with  the  land  ; 
grant  an  inspection  of  them  to  the  remainder-  Lord  Buckhurst"s  Case,  1  Co.  Rep.  2  ;  At- 
man,  the  precise  object  of  the  motion  must  kinson  v.  Baker,  4  T.  R.  229  ;  and  they  are 
be  set  forth,  and  the  court  will  exert  a  pa-  so  completely  part  of  the  realty,  that  at  com- 
ternal  authority  to  see  that  it  is  for  no  im-  mon  law  no  larceny  could  be  committed  of 
provident  or   improper    purpose  ;    Shaw  v.  them  ;  3  Inst.  109. 


or   CHATTELS   WHICH   DESCEND   TO   THE    HEIR.  65 

too  late  to  supersede  the  custom.(^)  According  to  some  authori- 
ties heir-looms  *cousist  only  of  bulky  articles,  such  as  tables 
and  benches  fixed  to  the  freehold  -.{u)  but  such  articles  ^*^^^ 
would  more  properly  fall  within  the  class  of  fixtures,  of  which 
we  shall  next  speak.  The  ancient  jewels  of  the  crown  are  heir- 
looms.(y)  And  if  a  nobleman,  knight  or  esquire  be  buried  in  a 
church,  and  his  coat,  armor,  or  other  ensigns  of  honor  belonging 
to  his  degree  be  set  up,  or  if  a  tombstone  be  erected  to  his 
memory,  his  heirs  may  maintain  an  action  against  any  person 
who  may  take  or  deface  them.(x)  The  boxes  in  which  the  title- 
deeds  of  land  are  kept  are  also  in  the  nature  of  heir-looms,  and 
will  belong  to  the  heir  or  devisee  of  the  lands ;  for  such  boxes 
"have  their  very  creation  to  be  the  houses  or  habitations  of 
deeds ;"(?/)  and  accordingly  a  chest  made  for  other  uses  Mdll  be- 
long to  the  executor  or  administrator  of  the  deceased,  although 
title-deeds  should  happen  to  be  found  in  it.  In  popular  language 
the  term  "  heir-loom"  is  generally  applied  to  plate,  pictures,  or 
articles  of  property  which  have  been  assigned  by  deed  of  settle- 
ment or  bequeathed  by  will  to  trustees,  in  trust  to  permit  the 
same  to  be  used  and  enjoyed  by  the  persons  for  the  time  being 
in  possession,  under  the  settlement  or  will,  of  the  mansion-house 
in  which  the  articles  may  be  placed.  Of  this  kind  of  settlement 
more  will  be  said  hereafter. 

Fixtures  are  such  movable  articles  or  chattels  personal  as  are 
fixed  to  the  ground  or  soil,  either  directly  or  indirectly,  by  being 
attached  to  a  house  or  other  building.  The  ancient  common 
law,  regarding  land  as  of  far  more  consequence  than  any  chattel 
which  could  be  fixed  to  it,  always  considered  everything  attached 
to  the  land  as  part  of  the  land  itself,  the  maxim  being  quicquid 
plantatur  solo,  solo  cedit.{z)  *Hence  it  followed  that  houses 
themselves,  which  consist  of  aggregates  of  chattels  per-  ■-  -' 
sonal  (namely,  timber  and  bricks)  fixed  to  the  land,  were  regarded 

(t)  See  Co.  Litt.  185  b. 

(u)  Spelman's  Glossary,  voce  Heir-Loom.  See  Williams  onExecutors,  pt.  2,  bk.  2,  ch.  2,  s.  3. 
(v)  Co.  Litt.  18  b. 
(x)  Co.  Litt.  18  b. 

(y)  Wentworth's  Office  of  an  Executor,  157,  14th  ed. 

(2)  See  4  Rep.  64  a ;  1  Lord  Raymond,  738 ;  Mackintosh  v.  Trotter,  3  Mee.  k  Wels.  184, 
186  ;  Williams  on  Executors,  pt.  2,  bk.  2,  ch.  3,  s.  2. 

5 


66 


OF   CUOSES   IN    POSSESSION. 


as  land,  and  passed  by  a  conveyance  of  the  land  without  the  ne- 
cessity of  express  mention ;  and  this  is  the  case  at  the  present 
day. (a)'  So  now,  a  conveyance  of  a  house  or  other  building, 
whether  absolutely  or  by  way  of  mortgage,  will  comprise  all  or- 


(a)  See  Principles  of  the  Law  of  Real  Property,  13. 


1  And  in  the  United  States,  generally, 
permanent  machinery,  such  as  the  main  wheel 
and  its  gearing,  an  engine  attached  to  a 
building,  a  cotton  gin  fixed  to  its  place,  will 
vest  in  the  grantee  of  the  real  estate  to  which 
they  belong. 

It  is  not  necessary  that  the  machinery  shall 
be  actually  affixed  to  the  realty  in  order  to  pass 
with  it,  where  it  is  of  course,  to  have  it  oc- 
casionally detached,  as,  for  instance,  a  set  of 
rolls  in  an  iron  rolling  mill,  temporarily  de- 
tached in  order  to  insert  others  ;  Voorhis  v. 
Freeman,  2  Wat.  &  Serg.  R.  719  ;  Powell  v. 
Manufacturing  Co.  3  Mason's  R.  459  ;  Far- 
rar  v.  Stackpole,  6  Greenleaf  R.  154; 
Sparks  v.  State  Bk.  7  Blackf.  R.  469  ;  Brat- 
ton  V.  Clawson,  2  Strobh.  R.  478  ;  DegrafFen- 
reid  v.  Scruggs,  4  Uumph.  R.  431  ;  English 
V.  Foote,  8  Smed.  &  Marsh.  R.  444  ;  Trull  v. 
Fuller,  28  Maine  R.  545  ;  Corliss  v.  McLag- 
in,  29  Id.  115;  Preston  v.  Briggs,  16  Vt.  R. 
124  ;  Miller  v.  Plumb,  6  Cow.  R.  665  ;  Har- 
lan V.  Harlan,  20  Pa.  St.  R.  303  ;  Parsons  v. 
Gopeland,  23  Maine  R.  537  ;  Baker  v.  Davis, 
19  N.  H.  R.  325. 

The  same  rule  will  hold  in  the  case  of  a 
mortgage,  and  such  articles  will  be  bound  by 
it ;  Union  Bk.  v.  Emerson,  15  Mass.  R. 
159  ;  Voorhis  v.  Freeman,  2  Wat.  &  Serg. 
R.  116  ;  Despatch  Line  of  Packets  v.  Bella- 
my, 12  N.  H.  R.  205  ;  Sparks  v.  State  Bk., 
7  Blackf.  R.  469  ;  Day  v.  Perkins,  2  Sandf. 
Ch.  R.  369  ;  Winslow  v.  Merchants'  Ins.  Co. 
4  Met.  R.  806  ;  Butler  v.  Page,  7  Id.  40; 
Sands  v.  Pfeiffer,  10  Cal.  R.  258  ;  Haskin  v. 
Woodward,  45  Pa.  St.  R.  42.  And  even 
though  put  up  after  the  mortgage  was  given. 
Roberts  v.  Dauphin  Bank,  19  Pa.  St.  R.  71. 
The  doctrine  has  been  carried  to  its  farthest 
extent  in  Pennsylvania,  where  all  machinery 
necessary  to  constitute  a  manufactory  passes 
with  the  land  on  which  it  stands ;  but  it 
must  have  been  once  affixed  as  machinery,  in 
order  to  become  a  constituent  element  of  the 


realty ;  Johnson  v.  Mehafiey,  43  Pa.  St.  R. 
308.  The  criterion  is  not  the  permanent 
fastening  to  the  freehold  ;  Harlan  v.  Harlan, 
15  Pa.  St.  R.  513;  Heaton  v.  Findlay,  12 
Id.  304;  Pyle  v.  Pennock,  2  Wat.  k  Serg.  R. 
390;  Voorhis  v.  Freeman,  2  Id.  116  ;  Chris- 
tian V.  Dripps,  28  Pa.  St.  R.  271 ;  Overton  v. 
Williston,  31  Id.  155. 

But  in  New  York,  under  the  Revised  Stat- 
utes, the  rule  is  that  nothing  personal  will 
pass  as  a  fixture  unless  it  be  permanently 
fixed  to  the  freehold.  And  the  machinery  in 
a  woollen  factory  is  personal  property.  Wal- 
ker V.  Sherman,  20  Wend.  R.  636  ;  Kelsey 
V.  Durkee,  33  Barb.  R.  410;  Murdock  v.  Gif- 
ford,  18  N.  Y.  R.  28.  It  is,  however,  the 
permanent  and  habitual  connection,  and  not 
the  manner  of  fastening,  which  determines 
the  question  ;  Laflin  v.  Griffiths,  35  Barb.  R. 
58  ;   Tabor  v.  Robinson,  36  Id.  483. 

And  this  would  seem  to  be  the  rule  in 
Connecticut  and  Massachusetts,  where  ma- 
chinery which  can  be  removed  without  injury 
to  the  building,  is  personal  property  as  re- 
spects creditors  and  purchasers  ;  Swift  v. 
Thomson,  9  Conn.  R.  63  ;  Gale  v.  Ward,  14 
Mass.  R.  352.  And  in  Vermont,  Fullam  v. 
Stearns.  30  Vt.  R.  443  ;  Hill  v.  Wentworth, 
28  Id.  428. 

In  Maine,  it  has  been  held  that  a  dwelling- 
house  partially  erected  on  land  of  another, 
under  a  parol  agreement  to  purchase,  but 
left  unfinished  and  not  underpinned,  re- 
mains the  personal  property  of  the  builder  ; 
Pullen  V.  Bell,  40  Maine  R.  314.  And  see, 
Fuller  V.  Heath,  39  Maine  R.  437  ;  Preston 
V.  Briggs,  16  Vt.  R.  124;  Stockwell  v. 
Marks,  5  Shepley's  R.  455 ;  Beers  v.  St. 
John,  16  Conn.  R.  522;  Shepard  v.  Spauld- 
ing,  4  Metcalfe's  R.  416;  The  State  v.  El- 
liott, UN.  Hamp.  R.  340  ;  White  v.  Arndt, 
1  Whart.  R.  91 ;  Bartlett  v.  Wood,  32  Vt. 
R.  372  ;  Murdock  v.  Harris,  20  Barb.  R. 
407;  Richardson  «;.  Gopeland,  6  Gray's  R.  536. 


OF   CHATTELS   WHICH   DESCEND   TO   THE   HEIR.  67 

dinary  fixtures,  such  as  stoves,  grates,  shelves,  locks,  &c.,  without 
any  express  mention,.(6)  unless  an  intention  to  withhold  the  fix- 
tures can  be  gathered  from  the  context. (e)  So  on  the  decease  of 
a  tenant  in  fee  simple,  the  devisee  of  a  house,  or  the  heir  at  law 
in  case  of  intestacy,  will  be  entitled  generally  to  the  fixtures  set 
up  in  it.((/)  The  ancient  rule  respecting  fixtures  has  been  greatly 
relaxed  in  favor  of  tenants  for  terms  of  years,  who  are  now 
permitted  to  renlove  articles  set  up  by  them  for  the  purposes  of 
trade  or  of  ornament,  or  domestic  convenience, (e)  provided  they 
remove  them  before  the  expiration  of  their  tenancy.(//  But 
the  old  rule  still  prevails  with  regard  to  agricultural  fixtures, 
which,  though  set  up  by  the  tenant,  become,  by  being  fixed  to 
the  soil,  the  property  of  the  landlord,(^f/)^  unless  tliey  are  put  up 

(4)  Colegrave  v.  Dias  Santos,  2  Barn.  &  Cress.  76,  E.  C.  L.  R.  vol.  9  ;  S.  C.  3  Dowl.  A 
Ry.  255  ;  Longstaff  v.  Meagoe,  2  Ad.  &  Ell.  167,  E.  C.  L.  R.  vol.  29;  Hitchman  v.  Walton, 
4  Mee.  &  Wels.  409  ;  Ex  parte  Barclay,  5  De  G.,  M.  &  G.  403  ;  Mather  v.  Eraser,  2  Kay  & 
John,  536  ;  Williams  v.  Evans,  23  Beav.  239 ;  Walmesly  v.  Milne,  7  C.  B.  N.  S.  115,  E.  C.  L. 
R.  vol.  97;    Metropolitan  Counties,  &e.,  Society  v.  Brown,  26  Beav.  454. 

{c)  Hare  v.  Horton,  5  Barn.  &  Adol.  715,  E.  C.  L.  R.  vol.  27. 

{d)  Shep.  Touch.  470. 

(f)  Grymes  v.  Boweren,  6  Bing.  437,  E.  C.  L.  R.  vol.  19. 

(/)  Lyde  v.  Russell,  1  Barn.  &  Adol.  394,  E.  C.  L.  R.  vol.  20;  Leader  v.  Homewood,  5 
C.  B.  N.  S.  546,  E.  C.  L.  R.  vol.  94. 

(g)  Elwes«.  Maw,  3  East,  38. 

1  Some  of  the  American  cases  to  this  point  St.   R.    522 ;    Wall   v.   Hinds,    4   Gray's   R. 

are  :  256  ;    Montague   v.    Dent,    1  Rich.    Law  R. 

Gaffield  v.  Hapgood,   17  Pick.  R.   192;  Ex  135  ;  Ombony  v.  Jones,  21  Barb.  R.  520. 
parte   Quincy,    1    Atk.   R.   477  ;    Holmes  v.        2  This  doctrine  has  not  been  directly  over- 

Tremper,    20    Johns.    R.    29 ;    Whiting   v.  ruled  in    the    United    States,   but   has  been 

Braston,  4  Pick.  R.  310;    Lelane  w.  Gasset,  strongly  questioned.     Whenever  the  question 

17  Vt.  R.  463  ;  Cook  v.  Champlain  Company,  has  been  before  the  courts,  they  have  leaned 

1    Denio   R.    91  ;  .Van    Ness   v.    Pacard,    2  in  favor  of  the  agricultural  tenant,    though 

Peters's  R.  153  ;  Russell  v.  Richards,  1  Fair-  deciding  as  for  a  manufacturing  tenant ;  Van 

field  R.  429  ;   Tapley  v.  Smith,    18   Maine  R.  Ness  v.  Pacard,   2  Pet.  R.   137 ;  Whiting  v. 

12;    Cresson  v.   Stout,    17  Johns.    R.    116;  Braston,  4  Pick.  R.  310;  Holme* u.  Trem- 

Tobias  v.  Frances,   3  Vt.  R.  425  :   Taffe  v.  per,  20  Johns.  R.  29. 

Warnick,  3  Blackf.  Ind.    R.   Ill;   Reynolds        Farm  fences,  however,  belong  to  the  realty  ; 

V.  Shutter,  5  Cowen's  R.  323;  Raymond  v.  Mott  v.  Palmer,   1  Comst.  R.  564;    Walker 

White,    7  Id.   318  ;    Wetherbee  v.  Foster,  5  v.  Sherman,  20  Wend.  R.  646. 
Vt.   R.    136;  Taylor  v.   Townsend,    8  Mass.        The  same   policy  of  encouraging  agricul- 

R.  411;   Blood  v.   Richardson,    2   Kent  Com-  tural  improvements,  will  not  permit  the  out- 

ment.,  p.  404,  note;   White's  Appeal,  10  Pa.  going  tenant  to  remove  manure  which   has 

St.  R.  253  ;  Case  of  the  Olympic  Theatre,  2  accumulated    during    the   term  ;    Lassell    v. 

Br.  285;  Ross's  Appeal,  9  Pa.   St.  R.  494;  Reed,    5  Greenieaf.'s    R.    222;    Middiebrook 

White   V.    Arndt,     1   Wh.    R.   91;    Gray   v.  v.   Corwin,    15   Wend.    R.    169;    Daniels    v. 

Holdship,   17  Serg.   &  Raw.  R.   415;   1   Mis-  Pond,    21   Pick.  R.  367;   Lewis  v.  Jones,    17 

Bouri  R.  508 ;  Vaugh  v.  Haldemun,   33  Pa.  Pa.  St.  R.  202 ;  Kitteridge  v.  Rhodes,   3  N. 


68  OF   CHOSES   IN    POSSESSION. 

with  the  consent  in  writing  of  the  landlord  for  the  time  being,  in 
r*i  r-i  "^'^^i<^l^  ^^se  it  is  provided  by  a  recent  act(/i)  *that  they  shall 
^  -'be  the  property  of  the  tenant,  and  shall  be  removable  by 
him  on  giving  to  the  landlord  or  his  agent  one  month's  previous 
notice  in  writing  of  his  intention  so  to  do,  subject  to  the  land- 
lord's right  to  purchase  the  same  by  valuation  in  the  manner 
provided  by  the  act.  This  act  extends  to  farm  buildings,  either 
detached  or  otherwise,  and  to  engines  and  machinery,  either  for 
agricultural  purposes  or  for  the  purposes  of  trade  and  agriculture, 
although  built  in  or  permanently  fixed  in  the  soil,  so  as  the  tenant 
making  any  such  removal  do  not  in  anywise  injure  the  land  or 
buildings  belonging  to  the  landlord,  or  otherwise  do  put  the  same 
in  like  plight  and  condition,  or  as  good  plight  and  condition,  as 
the  same  were  in  before  the  erection  of  anything  so  removed.  A 
relaxation  of  the  old  rule  has  also  been  made  in  favor  of  the  ex- 
ecutors of  a  tenant  for  life,  who  appear  to  be  allowed  to  remove 
fixtures  set  up  by  their  testator  for  the  purposes  of  trade  or  of  or- 
nament or  domestic  convenience. (f)  But  the  rule  of  the  common 
law  still  retains  much  of  its  force  as  between  the  devisee  or  heir  of 
a  tenant  in  fee  simple  and  his  executor  or  administrator.  Thus  a 
tenant  for  years  may  remove  ornamental  chimney-pieces  set  up  by 
him  during  his  tenancy ;  (J)  but  if  erected  by  a  tenant  in  fee  sim- 
ple, they  will  pass  with  the  house  to  the  devisee  or  heir.(A-)  So 
machinery  employed  in  carrying  on  iron  works  or  collieries  may 
be  removed  by  a  lessee  for  years,  if  erected  by  him;  but  if  erected 
b}'-  a  tenant  in  fee  simple,  such  machinery,  even  though  removable 
without  injury  to  the  freehold,  will  belong  to  the  heir  or  the  de- 
visee of  the  land.(^)  However  it  seems  that  pier  glasses,  fixed  by 
nails,  and  not  let  into  panels,  and  hangings  fastened  up  for  orua- 

(/t)  Sta^.  14  &  15  Vict.  25,  s.  3. 

(i)  Lawton  v.  Lawton,  3  Atk.  14. 

{j)  Bishop  V.  Elliott,  Ex.  Ch.  1  Jur.  N.  S.  962  ;  24  Law  J.  Exch.  229  ;  11  Ex.  Kep.  113. 

(X.)  Dudley  V.  Warde,  Amb.  113. 

{I)  Fisher  v.  Dixon,  12  CI.  &  Fin.  312. 


H.   R.  508  j   Parsons  V.  Campbell,  11  Conn,  shrubs,  as  personal  property  ;  Miller  i'.  Baker, 

R.  525.  1  Met.  R.    27  ;    King  v.  Wilcomb,    7  Barb. 

The  outgoing  tenant  of -a  nursery,  has  the  Sup.  C.  R.  263. 
right  to  take  up  and  carry  away  trees  and 


OF   CHATTELS   WHICH   DESCEND   TO   THE   HEIR. 


69 


ment,  will  now  belong  to  the  executor  or  *administrator    r-^,~.p,~, 
of  a  tenant  in  fee  simple  as  part  of  his  personal  e8tate.(m)^    ^       -^ 

(m)  Cayev.  Cave,  2  Vern.  508  ;  Squire  v.  Mayor,    2  Eq.  Ca.   Abr.  430,   pi.  7;  S.  C.  2 
Freem.  249. 


1  In  New  York,  by  the  Rev.  Stat.,  the  ex- 
ecutor is  put  on  the  same  footing  as  the  ten- 
ant, as  to  the  right  to  fixtures^  House  v. 
House,  10  Paige's  R.  163. 

The  law  of  fixtures  has,  in  derogation  of 
the  original  rule  of  the  common  law,  which 
subjected  everything  aflBxed  to  the  freehold 
to  the  law  governing  the  freehold,  made  the 
right  of  removing  fixtures  the  general  rule 
instead  of  the  exception.  2  Kent's  Comment, 
p.  343.  In  the  leading  case  of  Elwes  v. 
Mawe,  3  East's  R.  38,  Lord  Ellenborough 
divided  the  questions  respecting  the  right  to 
what  are  ordinarily  called  fixtures  into  three 
classes — 1st,  those  arising  between  different 
descriptions  of  representatives  of  the  same 
owner  of  the  inheritance,  viz.,  the  heir  and 
executor,  in  which  case  the  rule  obtains  with 
most  rigor  in  favor  of  the  inheritance,  and 
against  the  right  to  disannex  therefrom,  and 
to  consider  as  a  personal  chattel,  anything 
which  has  been  affixed  thereto.  2d,  between 
the  executors  of  tenant  for  life  or  in  tail,  and 
the  remainderman  or  reversioner,  in  which 
case  the  right  to  fixtures  is  considered  more 
favorably  for  the  executor.  3d,  between 
landlord  and  tenant,  in  which  in  favor  of 
trade  and  to  encourage  industry,  the  greatest 
latitude  and  indulgence  has  been  allowed  in 
favor  of  the  claim  of  the  tenant,  to  have  par- 
ticular articles  considered  as  personal  chat- 
tels, as  against  the  owner  of  the  freehold,  al- 
though in  the  case  last  referred  to,  the  rule 
laid  down  was  held  to  apply  as  between  land- 
lord and  tenant,  only  to  the  case  of  fixtures 
set  up  for  trading  purposes,  and  not  to  extend 
to  agricultural  ones  ;  the  tendency  ha.s  been 
both  in  this  country  and  in  England  to  ex- 
tend it  to  the  latter  also,  and  to  treat  the 
occupation  of  agriculture  as  a  trade  ;  Law- 
ten  V.  Lawten,  3  Atk.  R.  113;  Dudley  v. 
Warde,  Amb.  R.  13  ;  in  which  last  case  Lord 
Hardwicke  appears  to  have  considered  the 
privilege  in  question  as  belonging  to  fixtures, 
by  means  of  which  the  owner,  a  tenant  for 
life,  carried  on  a  species  of  trade,  by  which 
he  rendered   the   produce  of  his   own  land 


available  to  his  own  profit.  See  also,  Penton 
V.  Robart,  2  East  R.  91  ;  Mansborough  v. 
Maton,  4  A.  &  E.  R.  884  ;  R.  v.  Ottey,  1  B. 
&  Aid.  R.  161 ;  Whiting  v.  Braston,  4  Pick. 
Rep.  310 ;  Holmes  v.  Tremper,  20  Johns. 
Rep.  29;  Waterfall  v.  Penistone,  37  Eng. 
L.  &  Eq.  R.  156 ;  McGreary  v.  Osborne,  9 
Cal.  R.  119;  Van  Ness  v.  Pacard,  2  Pet.  U. 
S.  R.  137.  This  last  case  was  a  question 
between  landlord  and  tenant.  The  defendant, 
the  tenant,  had  erected  a  wooden  dwelling- 
house,  two  stories  high  in  front,  with  a  shed 
of  one  story,  a  cellar  of  stone  or  brick  foun- 
dation, and  a  brick  chimney.  The  defendant 
and  his  family  dwelt  in  the  house  from  its 
erection  until  near  the  expiration  of  the 
lease,  when  he  took  the  same  down  and  re- 
moved all  the  materials.  The  defendant  was 
a  carpenter,  and  he  gave  evidence  that  upon 
obtaining  the  lease  he  erected  the  building 
above  mentioned,  with  a  view  to  carry  on 
the  business  of  a  dairyman,  and  for  the  resi- 
dence of  his  family  and  servants  engaged  in 
his  said  business ;  and  that  the  cellar,  in 
which  there  was  a  spring,  was  made  and  ex- 
clusively used  for  a  milk-cellar,  in  which  the 
utensils  of  his  said  business  were  kept,  and 
scalded,  and  washed,  and  used  ;  and  that  feed 
was  kept  in  the  upper  part  of  the  house, 
which  was  also  occupied  as  a  dwelling  for  his 
family.  The  defendant  also  had  his  tools 
and  apprentices  in  the  house,  and  carpenter 
work  was  done  there.  He  had  also  built  a 
stable  for  his  cows,  of  plank  and  timber 
fixed  upon  posts  fastened  into  the  ground  ; 
which  stable  he  removed  with  the  house,  be- 
fore the  expiration  of  his  lease.  It  was  held, 
that  he  had  a  right  to  remove  these  struc- 
tures, as  they  had  been  erected  for  the  ac- 
commodation and  beneficial  operation  of 
trade. 

The  strict  rule  as  to  fixtures  which  applies 
between  heir  and  executor,  also  applies  as 
between  vendor  and  vendee,  and  mortgagor 
and  mortgagee  ;  Winslow  v.  Merchants'  In- 
surance Co.,  4  Metcalf  R.  306;  Preston  v. 
Briggs,  16  Vermont  R.    124  ;  Miller  v.  Plumb, 


70  OF   CHOSES   IN   POSSESSION. 

Where  fixtures  are  demised  to  a  tenant  along  with  the  house, 
mill  or  other  l)uilding  in  which  they  may  happen  to  he,  the  prop- 
erty in  the  fixtures  still  remains  in  the  landlord,  suhject  to  the 
tenant's  right  to  the  possession  and  use  of  them  during  his 
term;(?z)  and  if  they  should  be  severed  from  the  building  by  the 
tenant  or  any  other  person,  or  should  be  separated  by  accident, 
the  landlord  will  acquire  an  immediate  right  to  the  possession  of 
them.(o)  In  this  respect  they  are  subject  to  the  same  rules  as 
timber,  which,  as  we  shall  see,  is  equally  a  part  of  the  inheritance 
until  severed,  and  when  cut  becomes  the  personal  property  of  the 
owner  of  the  fee.  Fixtures,  which  would  descend  with  the  house 
or  building  to  the  heir  of  the  owner  of  the  fee  on  intestacy,  are 
not  in  fact  his  goods  and  chattels  properly  so  called. (2>) 

Chattels  vegetable  consist,  as  their  name  imports,  of  movable 
articles  of  a  vegetable  origin,  such  as  timber,  underwood,  corn, 
and  fruit.  All  these  articles,  so  long  as  they  remain  unsevered 
from  the  land,  are  for  many  purjDoses  considered  as  part  of  it; 
and  they  will  pass  by  a  conveyance  or  devise  of  the  land  without 
express  mention.  (5')  If,  however,  the  trees  should  be  expressly 
excepted  out  of  the  conveyance,  they  will  remain  the  personal 
property  of  the  grantor,  although  severed  only  in  contemplation 
of  law  ;(r)  and  in  like  manner  the  trees  alone  may  be  granted  by 
a  tenant  in  fee  simple,  and  will  then  form  the  personal  property 
f^-,^,-,  of  the  grantee,  even  *before  they  are  cut  down.(s)  But  if 
L       -^  a  tenant  of  lands  in  fee  simple  should  die  without  having 

(n)  Boydell  v.  McMichael,  1  Cro.  Mee.  &  Rose.  177 ;  Hitehman  v.  Walton,  4  Mee.  <t 
Wels.  409. 

(o)  Farrant  v.  Thompson,  6  Barn.  &  Aid.  826,  E.  C.  L.  R.  vol.  7. 

{p)  Winn  V.  Ingilby,  5  Barn.  &  Aid.  625,  E.  C.  L.  R.  vol.  7. 

(q)  Com.  Dig.  tit.  Biens  (H.) 

(r)  Herlakenden's  Case,  4  Rep.  6.3  b. 

(s)  Wentworth's  OflSce  of  an  Executor,  14th  ed.  148  ;  Williams  on  Executors,  pt.  2,  bk., 
1,  ch.  2,  sect.  2. 

6  Cowan's  R.  665  ;  Hare  v.  Herton,  2  Nev-  Gardner  v.  Finley,  19  Barb.  R.  317;  Walms- 
ille  &  Manning  R.  428  ;  Pyle  v.  Pennock,  2  ley  v.  Milne,  7  C.  B.  N.  S.  115.  But,  when 
Wat.  &  Serg.  R.  396.  The  same  rule  applies  a  tenant  is  entitled  to  remove  them  from 
in  favor  of  one  claiming  fixtures  under  an  the  freehold  and  treat  them  as  personalty, 
execution  as  real  estate  ;   Goddard  v.  Chase,  the  same  right  may  be  exercised  as  against 

7  Mass.  R.  432  ;  Voorhis  v.  Freeman,  2  the  owner  of  the  freehold,  by  an  assignee  or 
Wat.  &  Serg.  R.  116  ;  Baker  v.  Davis,  19  N.  an  execution  creditor;  Lemar  v.  Mills,  3 
H.  R.  325  ;  Murdock  v.  Harris,  20  Barb.  R.  Wat.  R.  232  ;  Doty  v.  Gerham,  5  Pick.  R. 
407  ;   Harkness  v.  Sears,   26   Ala.    R.    493  ;  487  ;  17  Serg.  &  Raw.  R.  413. 


OF   CHATTELS   WHICH   DESCEND   TO   THE   HEIR.  71 

gold  or  devised  tliem,(/)  the  law  then  draws  a  distinction  between 
such  vegetable  products  as  are  the  annual  results  of  agricultural 
labor,  and  such  as  are  not.  The  former  class  are  called  by  the 
name  of  emblements,  and  the  right  to  reap  them  belongs  to  the  ex- 
ecutor or  administrator  of  the  deceased  in  exclusion  of  the  heir  ;{u) 
whilst  the  latter  class  descend  to  the  heir  along  with  the  land.^ 
The  reason  of  the  distinction  appears  to  be,  that  as  annual  crops 
are  mainly  the  result  of  labor  incurred  at  the  expense  of  the 
owner's  personal  estate,  his  personal  estate  ought  to  reap  the 
benefit  of  the  crop  which  results. (x)  Accordingly  crops  of  corn, 
and  grain  of  all  kinds,  flax,  hemp,  and  everything  yielding  an 
artificial  annual  profit  produced  by  labor,  belong  to  the  executor 
or  administrator,  as  against  the  heir;  whilst  timber,  fruit  trees, 
grass  and  clover,  which  do  not  repay  within  the  year  the  labor  by 
which  they  are  produced,  belong  to  the  heir  as  part  of  the  land.(?/) 
The  right  to  emblements  also  belongs  to  the  executor  or  adminis- 
trator of  a  tenant  for  life,(2:)  and  to  a  tenant  at  will  if  dismissed 
from  his  tenancy  before   harvest,  (a)^     The  claims  of  tenants  at 

(t)  As  to  a  devisee,  see  Rudge  v.  Winnall,  12  Beav.  357;  Cooper  v.  Woolfit,  2  Hurl. 
&  Norm.  122. 

(?<)  Com.  Dig.  tit.  Biens  (G.) 

{x)  Wentworth's  OfiBce  of  an  Executor,  14th  ed.  147. 

(y)  See  Graves  v.  Weld,  5  Barn.  &  Adol.  105,  E.  C.  L.  R.-  vol.  27  ;  S.  C.  2  Nev.  &  Man. 
725. 

{z)  Principles  of  the  Law  of  Real  Property,  24,  2d  ed.  ;  25,  3d  and  4th  eds.  j  27,  5th 
and  6th  eds. 

(a)  Ibid.  p.  310,  2d  ed.,  325,  4th  ed. ;  336,  5th  ed.  ;  353,  6th  ed 

1  In   England,  it  would  appear   that  the  sons  t>.  Campbell,  11  Conn.  R.  525  ;  Goodrich 

outgoing  tenant  of  a  farm,  has  a  right  to  take  v.  Jones,  2    Hill's  R.  142  ;  Lewis  v.  Jones,  9 

away  the  manure,  unless  the  landlord  would  Penna.  Leg.  Int.  18;  Wain  v.  O'Connor,  Id., 

pay  him   its   value  ;    Roberts   v.    Barker,    1  67  ;    Barrington  v.  Justice,  4  Id.  289  ;  Lewis 

Crompt  &  Meeson  R.    809  ;    Gibbons  on  Di-  v.  Jones,  17    Pa.  St.  R.  262  ;  Plumer  v.  Plu- 

lapidations,  76.     But  in  this  country,  in  gev-  mer,  10  Foster's  R.  558.     In  New  Jersey,  it 

eral  instances  it  has  been  held,  that  manure  has  been  regarded  as  personal  property  until 

made  on  a  farm  is  not  only  an  appurtenance  spread  upon  the  ground  ;    Ruckman  v.  Out- 

of  the  realty,  which   passed  with  a  convey-  water,  4  Dutch.  R.    581. 
ance   of  the   land   from  the    grantor  to  the       ^  it  jg  g,    doctrine  of   the    common  law, 

grantee,  but  that  it  is  so  inseparably  incident  that  where  a  tenant  sows  the  land,  with  the 

to  the  freehold,  that  it  forms  an  exception  to  expectation  of  gathering  the  harvests,  no  sud- 

the  usual  rule  as  to  fixtures,  and   cannot  be  den  and  unlooked  for  termination  of  his  es- 

removed  by  an  outgoing  tenant  at  the  end  of  tate,  either  by  the  act  of  God   or  the  act  of 

his  term  ;  Lassell  v.  Reed,  6  Greenl.  R.   222  ;  the  lessor,  shall  deprive  him,  or  his  represen- 

Middlebrook   v.    Corwin,    15     Wendell's    R.  tatives,  of  the  fruit  of  his  labor  ;   but  if  the 

160  ;  Daniels  v.  Pond,  21  Pick.  R.  367  ;    Kit-  tenant's  interest  is  to   determine   at  a  fixed 

teridge  v.  Wood,  3  N.  Ilamp.  R.  503  ;   Par-  time,  or   if  he   by  his   own  act   has  brought 


72 


OF   CHOSES   IN    POSSESSION. 


rack  rent,  whose  tenancies  may  determine  by  the  death  or  cesser 
of  the  estate  of  tenants  for  life,  or  for  any  other  uncertain  interest, 


his  lease  to  a  conclusion,  he  cannot  claim  the 
profits,  for  it  is  by  his  own  folly  that  he  has 
sowed  that  which  he  could  not  reap.  This 
doctrine  of  the  emblements,  as  it  is  called,  is 
pretty  generally  received  in  the  United 
States,  it  having  been  held,  that  where  the 
lease  is  to  expire  at  a  fixed  time,  or  is  termi- 
nated by  the  act  of  the  lessee,  he  is  not  enti- 
tled to  the  emblements  ;  Hawkins  v.  Skegg, 
10  Hump.  R.  31  ;  Harris  v.  Carson,  7  Leigh's 
R.  6.32  ;  Debow  v.  Colfax,  5  Halst.  R.  128  ; 
Kitteridge  v.  Woods,  .3  N.  H.  R.  504  ;  Whit- 
marsh  V.  Cutting,  10  Johns.  R.  360  ;  Bain  v. 
Clark,  Id.  424.  On  the  other  hand,  where 
the  estate  is  of  an  uncertain  termination, 
and  it  is  suddenly  concluded  by  the  act  of 
God  or  that  of  the  lessor,  the  lessee  or  his 
legal  representatives,  may  claim  the  emble- 
ments ;  Comfort  v.  Duncan,  1  Miles'  R.  229  ; 
Davis  V.  Thompson,  13  Maine  R.  209  :  Sher- 
burne V.  Jones,  20  Id.  70;  Davis  v.  Brock- 
enbank,  9  N.  H.  R.  73  ;  Debow  v.  Colfax,  5 
Halst.  R.  128  ;  Kitteridge  !>.  Woods,  3  N.  H. 
R.  504  ;  Rising  et  al.  v.  Stannard,  17  Mass. 
R.  287;  Stewart  v.  Doughty  et  als.,  9  Johns. 
R.  108  ;  Weem's  Exec.  v.  Bryan  et  ux.,  21 
Ala.  R.  303 ;  Bennett  v.  Bennett,  34  Ala. 
R.  53.  And  in  several  of  the  States  there  are 
statutory  provisions  on  this  subject ;  Free- 
man V.  Tompkins,  1  Strobh.  Eq.  R.  53 ; 
Gage  V.  Rogers,  Id.  370  ;  Thompson  v. 
Thompson,  6  Munf.  R.  514  ;  Green  v.  Cut- 
wright,  Wright's  R.  738.  In  Pennsylvania, 
New  Jersey,  and  Delaware,  the  local  custom 
which  prevails  in  certain  parts  of  England, 
of  allowing  all  tenants  a  way  going  crop,  has 
been  adopted  as  the  law  of  those  States.  Un- 
der it,  the  tenant  is  entitled  to  his  "way 
going  crop,''  even  though  his  estate  may  have 
been  limited  to  expire  at  a  fixed  time,  as,  for 
example,  at  the  end  of  one  year;  Demi  v. 
Bossier,  1  Penna.  R.  224  ;  Stultz  v.  Dickey, 
5  Bin.  R.  285  ;  Carson  v.  Blazer,  2  Id.  475  ; 
Briggs  et.  als.  v.  Brown,  2  Serg.  k,  Raw.  R. 
14  ;  Rank  v.  Rank,  5  Pa.  St.  R.  213  ;  Craig 
V.  Dale,  1  Wat.  &  Serg.  R.  509 ;  Forsythe  v. 
Price,  8  Wat.  R.  282 ;  Iddings  v.  Nagle,  2 
Wat.  &  Serg.  R.  22;  Comfort  v.  Duncan,  1 
Miles'  R.  229  ;  Deaver  v.  Rice,  4  Dev.  &  Bat. 


R.  431  ;  Diffendorfer  v.  Jones,  eit.  5  Bin.  R. 
289  ;  Van  Doren  v.  Everitt,  2  South.  R.  460; 
Templeman  v.  Biddle,  1  Harring.  R.  622 ; 
Borrell  v.  Dewart,  37  Pa.  St.  R.  134  ;  the 
principle  of  which  decisions  may  be  gath- 
ered from  the  words  of  C.  J.  Tilghman,  in 
the  case  of  Shultz  v.  Dickey,  where  he  says 
that  "  In  the  nature  of  the  thing,  it  is 
reasonable,  that  where  a  lease  commences  in 
the  spring  of  one  year,  and  ends  in  the  spring 
of  another,  the  tenant  should  have  the  crop 
of  winter  grain  sown  by  him  the  autumn  be- 
fore the  lease  expired,  otherwise  he  pays  for 
the  land  one  whole  year  without  having  the 
benefit  of  a  winter  crop."  But  the  "way 
going  crop,"  is  the  crop  of  wheat  which  is 
sown  in  the  autumn  and  reaped  the  following 
summer,  and  never  that  crop  of  wheat  which 
is  sown  in  the  spring  of  the  year  ;  Demi  v. 
Bossier,  1  Pa.  R.  224  ;  Howell  v.  Schenck,  4 
Zabr.  89. 

But  the  right  of  the  tenant  to  his  "way 
going  crop,"  or  to  his  emblements,  may  be 
defeated  by  a  sale  of  the  premises  under  a 
judgment  or  mortgage  against  his  landlord, 
the  lien  of  which  is  anterior  to  the  lease  ; 
Pitts  V.  Hendrix,  6  Geo.  R.  452  ;  Gillett  v. 
Balcom,  6  Barb.  S.  R.  370  ;  Jones  v.  Thom- 
as, 8  Blackf.  R.  428  ;    Shepard  v.  Philbrick, 

2  Denio's  R.  174;  Lane  v.  King,  8  Wend. 
R.  584 ;  Crews  v.  Pendleton,  1  Leigh's  R. 
297  ;  King  v.  Fowler,  14  Pick.  R.  238  ;  How- 
ell V.  Schenck,  4  Zabr.  89  ;  but  see  to  the 
contrary,  Cassily  v.  Rhodes,  12  0.  R.  88, 
which  decides  that  a  lessee  is  entitled  to  the 
emblements  as  against  a  purchaser  of  lands 
sold  under  a  decree  of  foreclosure  ;  Houts  v. 
Showalter,  10  0.  R.  (N.  S.)  124  ;  and  see  also 
Miller  v.  Clement,  40  Pa.  St.  R.  484  ;  and 
Bittinger  v.  Baker,  29  Pa.  St.  R.  66.  over- 
ruling Sallade  v.  James,  6  Pa.  St.  R.  144  ; 
Grofi"  V.  Levan,  16  Id.  179.  But  it  has  been 
held  that  where  lands  are  devised,  the  growing 
crops  on  the  land  will  go  to  the  devisee,  and 
not  to  the  executor,  unless  a  contrary  inten- 
tion is  expressed  in  the  will  ;    Budd  v.  Hiler, 

3  Dutch.  R.  43  ;  Shafner  v.  Shafner,  5 
Sneed'sR.  94. 

The  doctrine  of  emblements  does  not  apply 


OF    CHATTELS   WHICH   DESCEND   TO   THE   HEIR.  73 

are  now  provided  for  by  a  recent  enactment,  giving  tlie  tenants  at 
rack  rent  a  riglit  to  continue  to  hold  until  tlie  expiration  of  the 
current  year  of  their  tenancy.(6) 

*When  lands  are  let  to  a  tenant  for  years  or  for  life,  if  [-^-.q-. 
no  exception  is  made  of  the  timber,  the  property  in  the 
timber  will  still  remain  in  the  owner  of  the  inheritance,  subject  to 
the  tenant's  right  to  have  the  mast  and  fruit  growing  upon  it,  and 
the  loppings  for  fuel,  and  the  benefit  of  the  shade  for  his  cattle.(c) 
Accordingly  all  fruit  which  may  be  plucked,  or  bushes  or  trees, 
not  being  timber,  which  may  be  cut  or  blown  down,  will  belong 
to  the  tenant  ;(<;/)  but  timber  trees,  which  may  be  cut  or  blown 
down,  will  immediately  become  the  property  of  the  owner  of  the 
first  estate  of  inheritance  in  the  land,  whether  in  fee  simple  or  in 
tail.(e)  Timber  trees  are  oak,  ash,  and  elm  in  all  places;  and  in 
some  particular  parts  of  the  country,  by  local  custom,  where  other 
trees  are  generally  used  for  building,  they  are  for  that  reason  con- 
sidered as  timber.(/)  But  if  the  tenant  should  be  a  tenant  without 
impeachment  of  waste  {sine  imjyetitione  vasti),  timber  cut  down  by 
him  in  a  husbandlike  manner  will  become  his  own  property 
when  actually  severed,(^^)  but  not  before  ;(A)  for  the  words  "with- 
out impeachment  of  waste"  imply  a  release  of  all  demands  in  re- 
spect of  any  waste  which  may  be  committed.(i)  If,  however,  the 
words  should  be  merely  loithout  being  impleaded  for  waste,  the  prop- 

(h)  Stat.  14  and  15  Vict.  c.  25,  s.  1.  See  Principles  of  the  Law  of  Real  Property,  p.  25, 
.3d  and  4th  eds.  ;  27,  5th  and  6th  eds. 

(c)  Lilford's  Case,  11  Rep.  48  b. 

{(l)  Channon  v.  Patch,  5  Barn.  &  Cress.  897,  E.  C.  L.  R.,  vol.  11  ;  S.  C.  8  Dow.  &  Ry. 
651;  Berriman  w.  Peacock,  9  Ring.  384,  E.  C.  L.  R.,  vol.  23;  S.  C.  Moo.  &  Scott,  524; 
Pidgley  v   Rawling,  2  Coll.  275. 

(«)  Herlakenden's  Case,  4  Rep.  63  a;  Whitfield  v.  Bewitt,  2  P.  Wms.  240  ;  3  P.  Wms.  268  ; 
Lushiiigton  v.  Boldero,  15  Beav.  1. 

(/)  2  Black.  Com.  281. 

(g)  Lewis  JJowels'  Case,  11  Rep.  82  b.  See  Principles  of  the  Law  of  Real  Property,  23, 
2d  ed. ;   24,  3d  and' 4th  eds.  ;   25,  5th  and  6th  eds. 

(/t)  Cholmeley  v.  Paxton,  3  Ring.  207,  E.  C.  L.  R.  vol.  11  ;  10  Barn.  &  Cress.  564,  E.  C. 
L.  R.,  vol.  21. 

(J)  11  Rep.  82  b. 

to   the   public    lands   of  the  United   States;  Humphries  v.  Humphries,    3   Ired.  R.  362; 

Boyer  v.  Williams,  5  Mo.  R.  335;    Rasor  v.  Evans  v.  Inglehart,  6  G.  &  John's  II.    190; 

Quails,  4  Blackf.  R.  286.  Singleton  t).  Singleton,  5  Dana's  R.    92  ;  Toby 

For  further  on  the  subject  of  emblements,  v.  Reed,  9  Conn.  R.   225  ;    Moorhead  v.  Sny- 

see   Foster   v.   Fletcher,     7    Mon.   R.     534;  der,  33  Pa.  St.  R.  251  ;    Walmsley  v.  Milne, 

Green    v.    Cartwright,    Wright's    R.    738  ;  7  C.  B.  R.  (N.  S.)  115. 


74  OF   CHOSES   IN    POSSESSION. 

ertj  in  the  trees  wlien  cut  would  still  remain  in  the  landlord,  and 
the  action  only  would  be  discharged,  which  he  might  otherwise 
r*iq-]  ^^''^^"^  maintained  *against  the  tenant  for  the  waste  com- 
-'  mitted  by  the  act  of  felling  the  timber.(/:) 

Animals  ferce  naturce,  or  wild  animals,  including  game,  are  ex- 
ceptions from  the  rules  which  relate  to  other  movables,  on  the 
ground  that  until  they  are  caught  there  is  no  property  in  them. 
If  therefore  the  owner  of  land  in  fee  simple  should  die,  the  game 
on  his  land,  or  the  fish  in  any  river  or  pond  upon  the  land,  will 
not  belong  to  his  executor  or  administrator. (/)  And  if  a  man 
should  have  a  park  or  warren,  he  has  no  true  property  in  the  deer, 
conies,  pheasants,  or  partridges ;  but  they  belong  to  him  only  "  ra- 
iione  jprivilcgii  for  his  game  and  pleasure  so  long  as  they  remain 
in  the  privileged  place."(m)  But  a  property  in  wild  animals 
may  be  obtained  by  reclaiming  or  catching  them  [jproiJter  in- 
dustriam),  or  by  reason  of  their  being  unable  to  get  away  [propter 
impotentiam.){n)  Thus  deer,  even  though  in  a  legal  park,  may  be 
80  tame  and  reclaimed  as  to  pass  to  the  executors  of  the  owner  of 
the  park  on  his  decease  ;(o)  so  rabbits  in  a  hutch,  fish  in  a  box,  and 
young  pigeons  in  a  dove  house,  unable  to  fly,  will  belong  to  the 
executor  or  administrator  of  the  owner,  and  not  to  his  heir.  It 
appears  to  have  been  formerly  thought  that  hawks  and  hounds 
were  not  subjects  of  personal  property,  but  would  descend  with 
the  lands  to  the  heir ;  but  this  opinion  is  not  now  law.  "  For," 
observes  the  author  of  the  Office  of  an  Executor,(j9)  "  although 
they  be  for  the  most  part  but  things  of  pleasure,  thai  hindereth 
not  but  they  may  be  valuable  as  well  as  instruments  of  music, 
r*9m  ^^^^  tending  to  delight  *and  exhilarate  the  spirits ;  a  cry 
of  hounds  hath  to  my  sense  more  spirit  and  vivacity  than 
any  other  music." 

The  occupier  of  land  for  the  time  has  now  the  sole  right  of 
killing  and  taldng  the  game  upon  the  land,  unless  such  right  be 

(A)  Walter  Idel's  Case,  11  Rep.  83  a. 
(/)  Co.  Litt.  8  a ;  The  Case  of  Swans,  7  Rep.  17  b. 

(«»)  7  Rep.  17  B  ;  Year  Book,  4  Hen.  VI,  55  b.  56  a  :  F.  N.  B.-87,  ii.(a). 
(n)  2  Black.  Cora    391,  394  ;   Williams  on  Executors,  pt.  2,  bk.  2,  ch.  2,  sec.  1. 
(o)  Morgan  v.  The  Earl  of  Abergavenny,  8  C.  B.  678,  E.  C.  L.  R.,  vol.  65. 
(p)  Wentworth's  Office  of  an  Executor,  143,  14th   ed.     The  author  of  this  work  is  sup- 
posed to  have  been  Mr.  Justice  Doddridge. 


OF    CHATTELS    WHICH    DESCEND    TO   THE    HEIR.  75 

reserved  to  the  landlord  or  any  other  person. (5-)  Where  the  land- 
lord has  reserved  to  himself  the  right  of  killing  game,  he  may 
authorize  any  person  or  persons,  who  shall  have  obtained  cer- 
tificates, to  enter  npon  the  land  for  the  purpose  of  pursuing  and 
killing  game  thereon.  (;r)  And  the  lord  of  any  manor  or  reputed 
manor  has  the  right  to  pursue  and  kill  the  game  upon  the  wastes 
or  commons  within  the  manor,  and  to  authorize  any  other  person 
or  persons,  who  shall  have  obtained  certificates,  to  enter  upon  such 
wastes  or  commons  for  the  same  purpose.(5) 

When  game  or  other  wild  animals  were  killed  on  any  land  by 
any  other  person  than  the  rightful  0"vvner,  the  law,  with  respect  to 
the  property  in  the  game,  was  formerly  as  follows :  If  a  man 
started  any  game  within  his  own  grounds  and  followed  it  into 
another's,  and  killed  it  there,  the  property  remained  in  himself. 
And  so  if  a  stranger  started  game  in  one  man's  chase  or  free 
warren,  and  hunted  it  into  another  liberty,  the  property  continued 
in  the  owner  of  the  chase  or  warren ;  this  property  arising  from, 
privilege,  and  not  being  changed  by  the  act  of  a  mere  stranger. 
Or  if  a  man  started  game  on  another's  private  grounds,  and  killed 
it  there,  the  property  belonged  to  him  on  whose  ground  it  was 
killed.  Whereas,  if,  after  being  started  there,  it  was  killed  in 
the  grounds  of  a  third  person,  the  property  belonged  not  to  the 
owner  of  the  first  ground,  because  the  property  was  local ;  nor 
yet  to  the  owner  of  the  second,  because  it  was  not  started  ^^^-1-1 
*in  his  soil ;  but  it  vested  in  the  person  who  started  and  ^  -■ 
killed  it,  though  guilty  of  a  trespass  against  both  the  owners.(^) 
And  this  appears  to  be  still  the  law  with  respect  to  wild  animals 
which  are  not  game.(i<)  But  with  respect  to  game,  an  alteration 
appears  to  have  been  made  by  the  last  Game  Act,(a:)  which  seems 
to  vest  the  property  in  game  killed  on  any  land  by  strangers,  in 
the  person  ha\^ng  the  right  to  kill  and  take  the  game  upon  the 
land.(j/) 

(q)  Stat.  1  and  2  Will.  IV,  c.  32.     See  as  to  hares,  stat.  11  and  12  Vict.  c.  29. 
(r)  Stat.  1  and  2  Will.  IV,  c.  32,  s.  11. 
(»)  Sect.  10. 

(0  2  Bl.  Com.  419;  Churchward  v.  Studdy,  14  East,  249. 

(m)  See  Blades  v.  Higgs,  12  C.  B.,  N.  S.    501,  E.  C.  L.  R.,  vol.  104,  and  qu   as  to  the 
correctness  of  the  grounds  of  this  decision. 
(x)  Stat.  1  and  2  Will.  IV.  c.  32. 
(y)  Sect.  36.     Rigg  v.  Earl  of  Lonsdale,  1  II.  and  N.  923. 


76  OF   CHOSES   IN   POSSESSION. 


[*22]  *CHAPT.ER    II. 

OF   TROVER,    BAILMENT,   AND    LIEN. 

Having  now  considered  tlaose  movable  articles  of  property 
which  form  exceptions  to  the  rules  by  which  chattels  personal  are 
in  general  governed,  let  us  proceed  to  notice  some  circumstances 
in  which  chattels  personal  may  be  placed,  so  as  to  form  not  real 
but  apparent  exceptions  to  the  primary  rule  already  noticed,(a) 
that  personal  property  is  essentially  the  subject  of  absolute 
ownership,  and  cannot  be  held  for  any  estate.  The  property  in 
goods  can  only  belong  to,  or  be  vested  in,  one  person  at  one 
time :  in  this  respect  it  resembles  the  seisin  of  feudal  possession 
of  lands.  (6)  Lands,  however,  may  be  so  conveyed  that  several 
persons  may  possess  in  them,  at  the  same  time,  several  distinct 
vested  estates  of  freehold,  one  of  them  being  in  possession,  and 
the  others  in  remainder,  or  the  last  perhaps  being  in  reversion. (c) 
But  the  law  knows  no  such  thing  as  a  remainder  or  reversion  of 
a  chattel.  It  recognizes  only  the  simple  property  in  goods,  coupled 
or  not  with  the  right  of  immediate  possession.  This  simple  prin- 
ciple of  law,  if  carefully  borne  in  mind,  will  serve  to  explain  many 
points  which  would  otherwise  appear  difficult  or  even  contradic- 
tory. It  musl  be  remembered,  however,  that  it  does  not  strictly 
apply  to  the  movable  articles  noticed  in  our  first  chapter,  which, 
from  their  connection  with  the  land,  are  often  governed  by  the 
principles  of  real,  rather  than  those  of  personal  property. 

*1.  When  the  property  in  goods  is  coupled  wath  the  pos- 
*-  -'  session  of  them,  the  ownership  is  of  course  complete.  This 
is  the  common  and  usual  case  of  the  ownership  of  chattels  per- 
sonal :  the  owner  knows  that  the  goods  are  his  own,  and  in  his 
owai  possession,  and  that  is  sufficient  for   him.     Circumstances 

{a)  Ante,  p.  7. 

(b)  See  Principles  of  the  Law  of  Real  Property,  111,  2a  ed.  ;   116,  3d   &  4th  eds.  ;   121, 
122,  5th  ed  ;   127,  128,  6th  ed. 

(c)  Ibid.  p.  198,  2d  ed.  ;  206,  4th  ed. ;  215,  5th  ed. ;  225,  6th  ed. 


OF    TROVER,    BAILMENT,    AND   LIEN.  77 

may,  liowever,  arise  to  change  this  state  of  things.  An  article 
may  be  lost.  In  this  case  the  owner  still  retains  his  property  in 
the  thing,  but  he  has  lost  the  possession  of  it.  The  property, 
however,  which  still  remains  in  him,  entitles  him  to  the  pos- 
session of  the  article  whenever  he  can  meet  with  it ;  or,  in  legal 
phraseology,  the  property  draws  with  it  the  right  of  possession,  ((/) 
If  therefore  another  person  should  find  the  article  lost,  he  -v^dll 
have  no  right  to  convert  it  to  his  own  use,  if  he  has  any  means  of 
knowing  to  whom  it  belonged,  but  must  on  demand  deliver  it  up 
to  the  rightful  owner,  in  whom  the  property  is  already  vested. 
K  he  should  refuse  to  do  so,  such  refusal  will  argue  tjiat  he  claims 
it  as  his  own,  and  will  accordingly  be  evidence  of  a  conversion  of 
the  thing  to  his  own  use.(e)  For  the  wrong  or  iresimss  thus  com- 
mitted, a  specific  remedy  has  been  provided  by  the  law,  in  the 
shape  of  an  action  of  trover  and  conversion,  or  more  shortly  an 
action  of  trover,  which  is  one  of  those  actions  comprised  within 
the  technical  class  of  trespass  on  the  case.  The  word  trover  is  from 
the  French  trovver,  to  find ;  and  the  word  conversion  is  added,  from 
the  conversion  of  the  goods  to  the  use  of  the  defendant  being  the 
gist  of  the  action  thus  brought  against  him.  That  the  defendant 
should  have  found  the  article  lost  is  not  his  fault,  but  his  con- 
version of  it  to  his  own  use  is  a  trespass,  and  renders  him  liable 
to  the  action  we  are  now  considering.  This  action  accordingly 
is  now  constantly  brought  to  recover  damages  for  withholding  the 
possession  of  goods  whenever  they  *have  been  wrongfully  ^^04-1 
converted  by  the  defendant  to  his  own  use  without  regard  '-  -■ 
to  the  means,  whether  by  finding  or  otherwise,  by  which  the  de- 
fendant may  have  become  possessed. (/)  This  action  can  be 
maintained  only  when  the  plaintiff"  has  been  in  possession  of  the 
goods,(^)  or  has  such  a  property  in  them  as  draws  to  it  the  right 
to  the  possession.  If  the  goods  have  been  wrongfully  converted 
by  the  defendant  to  his  own  use,  the  plaintiff  will  succeed,  if  he 
should  prove  either  way  his  own  right  to  the  immediate  pos- 
session of  the  goods  ;(A)  if  he  should  not  prove  such  right,  he 

{d)  2  Wms.  Saunders,  47  a. 

(e)  Ibid   47  e  ;  Agar  v.  Lisle,  Hob.  187  ;  Bac.  Abr.  tit.  Trover  (B). 

(/)  3  Black.  Com.  15.3. 

{g)  Addison  v.  Round,  4  Ad.  and  Ell.  799,  E.  C.  L.  R.,  vol.  31;  S.  C.  6  Nev.  and  Man. 
422 ;   Brooke  v.  Mitchell,  6  N.  C.  349,  E.  C.  L.  R.,  vol.  37  ;  S.  C.  8  Scott,  739. 

Iji)  Wilbraham  v.  Snow,  2  Saund.  47 ;  Armory  v.  Delamirie,  1  Str.  505  ;  Roberts  v. 
Wyatt,  2  Taunt.  268  ;  Legg  v.  Evans,  6  Mee.  and  W.  36  ;  Stephen  on  Pleading,  354,  5th  ed 


78  OF    CHOSES   IN    POSSESSION. 

will  fail.(i)  The  property  in  the  goods  is  that  which  most  usually 
draws  to  it  the  right  of  possession  ;  and  the  right  to  maintain  an 
action  of  trover  is  therefore  often  said  to  depend  on  the  plaintiff's 
property  in  the  goods ;  the  right  of  immediate  possession  is  also 
sometimes  called  itself  a  special  kind  of  property ; (A)  hut  these 
expressions  should  not  mislead  the  student.  The  action  of  trover 
tries  only  the  right  to  the  immediate  possession,  which,  as  we 
shall  now  see,  may  exist  apart  from  the  property  in  the  goods. 

For  let  us  suppose  that  the  finder  of  the  article  lost,  whilst  ig- 
norant of  the  true  owner,  should  have  been  wrongfully  deprived 
of  it  by  a  third  person.  In  this  ease,  the  owner  being  absent, 
the  finder  is  evidently  entitled  to  the  possession  of  the  thing; 
and  he  will  accordingly  succeed  in  an  action  of  trover  brought 
^  ^  by  him  *against  the  wrongdoer.  (^)^  Here  the  property 
•-  -^  in  the  thing  which  was  lost  evidently  belongs  still  to  the 
original  owner;  but  the  right  of  possession  is  in  the  finder, 
until  the  owner  makes  his  appearance.  The  owner's  property  then 
draws  with  it  the  right  of  possession ;  and  should  the  finder  con- 

(i)  Gordon  v.  Harper,  7  T.  Rep.  9;  Ferguson  v.  Cristall,  5  Bing.  305,  E.  C.  L.  R.,  vol. 
15  i  Leake  v.  Loveday.  4  Man.  and  Gr.  972,  E.  C.  L.  R.,  vol.  43;  Bradley  v.  Copley,  1  0. 
B.  685,  E.  C.  L.  R.,  vol.  50. 

(k)  Rogers  v.  Kennay,  9  Q.  B.  592,  E.  C.  L.  R.,  vol.  58. 

(/)  Armory  v.  Delamirie,  1  Str.  505  j  1  Smith's  Leading  Cases,  151  ;  Bridges  v.  Hawkes- 
worth,  15  Jur.  1079. 


^  The  finder  of  a  chattel  has  a  special  fully  obtained,  is  a  suflBcient  title  in  the 
property  in  it,  and  may  maintain  trover  plaintiff,  as  against  a  mere  stranger  or 
against  any  one  who  shall  convert  't,  except  wrongdoer  ;  Knapp  v.  Winchester,  11  Vt.  R. 
the  true  owner.  But  this  rule  does  not  apply  351;  Coffin  v.  Anderson,  4  Blackf.  R.  395  ; 
to  the  finder  of  a  chose  in  action,  e.  g.,  a  Cook  v.  Patterson,  35  Ala.  R.  102;  Jeffries 
promissory  note  or  lottery  ticket ;  McLaugh-  v.  Great  Western  R.  R.  Co.  34  Eng.  L.  &  Eq. 
lin  V.  Waite,  9  Cow.  R.  670  ;  see  Brandon  v.  R.  122.  But  not  as  against  the  real  owner  ; 
Huntsville  Bank,  1  Stew.  R.  320  ;  Boyle  v.  Sylvester  v.  Girard,  4  Rawle's  R.  185. 
Roche,  2  E.  D.  Smith's  R.  335  ;  and  so  of  The  finder  of  a  chattel  may  maintain  tro- 
money  in  specie,  or  bank  bills  ;  20  N.  Y.  R.  ver  for  it ;  Clark  v.  Mallory,  3  Harring.  R.  68. 
76;  though  it  is  otherwise  where  the  money  can  Trover  may  be  maintained  against  a  stran- 
be  identified,  as  specie  on  special  deposit,  or  ger,  upon  a  mere  prior  possession  obtained 
bank  bills  by  proof  of  denomination,  letter,  by  a  purchaser  of  chattels,  under  a  void  ex- 
Ac.  For  the  law  on  this  subject,  in  regard  ecution  ;  Duncan  v.  Spear,  11  Wend.  R.  54. 
to  those  securities  known  on  the  stock  ex-  But  where  a  chattel  is  converted  by  a  bailee, 
changes  as  bonds  payable  to  bearer,  with  or  who  sells  or  leases  it  without  authority,  the 
without  coupons,  for  interest  attached  to  bailor  may  maintain  trover  for  it,  even  against 
them,  see  a7ite,  note  (1),  p.  5.  a  vendee  or  lessee  in  good  faith   and  without 

Possession,    whether  rightfully  or  wrong-  notice  ;  Crocker  t;.  Gullifer,  44  Maine  R.  491. 


OF    TROVER,  BAILMENT,    AND    LIEN.  79 

vert  the  article  found  to  his  own  use,  he  in  his  turn  will  be  liable 
to  an  action  of  trover  in  respect  of  the  owner's  right  of  possession. 
Thus,  so  far  as  we  have  already  proceeded,  we  have  found  nothing 
more  than  a  simple  property  in  goods,  existing  with  or  without 
the  right  of  possession.  The  action  of  trover  tries  the  right  of 
possession,  and  may  or  may  not  determine  the  property.  For, 
strange  as  it  may  appear,  there  is  no  action  in  the  law  of  England 
by  which  the  property  either  in  goods  or  lands  is  alone  decided. 

2.  But  the  article  in  question,  instead  of  being  lost  and  found, 
may  become  the  subject  of  bailment.  Bailment  is  defined  by  Sir 
William  Jones,  in  his  admirable  and  classical  Treatise  on  the 
Law  of  Bai]ment,(m)  to  be  a  delivery  of  goods  in  trust,  on  a  con- 
tract expressed  or  implied,  that  the  trusts  shall  be  duly  executed, 
and  the  goods  redelivered  as  soon  as  the  trust  or  use  for  which 
they  were  bailed  shall  have  elapsed  or  be  performed.  The 'term 
bailment  is  derived  from  the  French  word  bailler,  to  deliver.  The 
person  who  delivers  the  goods  is  called  the  bailor ;  the  person  to 
whom  they  are  delivered  the  bailee.  The  trusts  on  which  goods 
may  be  delivered  are  various :  the  principal  are  the  following. 
They  may  merely  be  lent  to  a  friend,  or  left  in  the  custody  of  a 
warehouseman  or  wharfinger,  or  they  may  be  intrusted  to  a  car- 
rier to  convey  to  a  distance,  or  to  an  agent  or  factor  to  sell ;  or 
they  may  be  pawned  for  *money  lent,  or  let  out  to  hire.(?i)  (-^j^«-i 
In  all  cases  of  bailment,  however,  the  simple  rule  still  holds,  ^  -' 
that  the  'property  in  goods  can  belong  to  one  party  only;  and 
when  any  goods  are  bailed,  the  property  still  remains  in  the 
bailor.(o)  The  possession  of  the  goods,  however,  is  evidently  for 
the  time  being  with  the  bailee.  But  if,  while  goods  are  in  bail- 
ment, a  third  person  should  become  possessed  of  them,  and 
should  wrongfully  convert  them  to  his  own  use,  the  right  to  re- 
cover possession  will  in  some  degree  depend  upon  the  nature  of 
the  bailment. 

If  the  bailment  should  be  what  is  called  a  simple  bailment,  as  in 
the  four  first  instances  above  mentioned,  that  is,  a  bailment  which 
does  not  confer  on  the  bailee  a  right  to  exclude  the  bailor  from 

(m)  p.  117. 

(n)  See  Coggs  v.  Bernard,  2  Ld.  Raym.  909,  912. 

(o)  Franklin  v.  Neate,  1.3  Mee.  and  W.  481. 


80  OF    CIIOSES   IN    POSSESSION. 

possession,  in  sucli  a  case  either  tlic  bailee  or  the  bailor  may 
maintain  an  action  of  trover  against  the  wrongdoer. (p)^  The 
bailee  may  maintain  this  action,  because  the  action  depends  only 
on  the  right  to  the  possession  which  the  bailee  has  by  virtue  of 
the  bailment  made  to  him;((^)  and  the  bailor  may  also  maintain 
the  action,  because  his  property  in  the  goods  draws  with  it  the 
right  of  possession,  and  the  bailment  is  not  of  such  a  kind  as  to 
vest  this  right  in  the  bailee  solely.  The  bailee  is  rather  in  the 
situation  of  servant  to  the  bailor,  and  the  possession  of  the  one  is 
equivalent  in  construction  of  law  to  the  possession  of  the  other. 
But  as  it  would  be  unjust  that  the  wrongdoer  should  pay  dama- 
ges twice  over  for  his  offence,  the  recovery  of  damages  either  by 
bailee  or  bailor  deprives  the  other  of  his  right  of  action. (r)  If, 
however,  the  bailment  should  not  be  of  the  simple  kind,  but 
r^ofT.n  should  confer  on  *tlie  bailee  the  right  to  exclude  the  bailor 
'-  -*  from  the  possession,  here,  though  the  property  in  the  goods 
still  remains  in  the  bailor,  the  bailee  alone  can  maintain  an  action 
of  trover  against  any  person  who  may  have  taken  the  goods  and 
converted  them  to  his  own  use.  Thus  the  pawnee  or  hirer  of 
goods  can  alone  maintain  an  action  of  trover  so  long  as  the  pawn- 
ing or  hirin^g  continues. (5)  Here  again  we  have  the  property  in 
the  goods  still  vested  in  one  person,  the  bailor,  drawing  with  it, 
in  the  case  of  simple  bailment,  the  right  to  the  possession,  and, 
in  the  case  of  other  bailments,  temporarily  disconnected  from 
that  right.  If,  however,  any  bailee,  whatever  be  the  nature  of 
his  bailment,  should  convert  the  goods  bailed  to  him  to  his  own 
use,  he  will  by  that  act  have  determined  the  bailment;  the  prop- 
erty in  the  bailor  will  draw  to  it  the  right  to  immediate  possession, 
and  the  bailor  may  accordingly  recover  damages  for  the  act  by 
an  action  of  trover.  (/) 

(p)  Nichols  V.  Bastard,  2  C.  M.  and  R.  659  ;   Manders  v.  Williams,  4  Exch.  Rep.  339. 

(q)  Sutton  V.  Buck,  2  Taunt.  302. 

(r)  Bac.  Abr.  tit.  Trover  (C). 

(s)  Gordon  v.  Harpar,  7  T.  R.  9  ;  Burton  v.  Hughes,  2  Bing.  173,  E.  C.  L.  R.,  vol.  9; 
Ferguson  v.  Cristall,  5  Bing.  305,  E.  C.  L.  R.,  vol.  15  ;  Pain  v.  Whitaker,  Ry.  and  Moo. 
99,  E.  C.  L.  R.,  vol.  21. 

(t)  Cooper  V.  Willomatt,  1  C.  B.,  672,  E.  C.  L  R.,  vol.  50. 

1  A.  of  Liverpool  shipped  goods,  which,  Held,  that  the  bill  of  lading  vested  the  prop- 
by  the  bill  of  lading,  were  to  be  delivered  to  erty  in  B  ,  who  might  maintain  an  action  in 
D.  or  his  assigns,  in  Philadelphia.  The  freight  his  own  name  against  the  owner  of  the  ship, 
was  payable  in  Liverpool,  and  it  appeared  for  the  negligent  carriage  of  the  goods  ;  Grif- 
that  the  goods  were  shipped  on  account  of  A.  fith  v.  Ingledew,  6  Serg.  &  Raw.  R.  429 


OF    TROVER,  BAILMENT,  AND    LIEN.  81 

3.  The  last  case  requiring  notice  in  whicli  goods  may  be  iu 
the  possession  of  a  person  who  has  no  property  in  them,  is  the 
case  of  the  existence  of  a  lien  on  the  o-oocls,  A  lien  is  the  rio-ht 
of  a  person  in  the  possession  of  goods  to  retain  them  until  a  debt 
due  to  him  has  been  satisfied,  (m)  A  View,  i^  e\i\\Qv  particular  or 
general.  A  particular  lien  is  a  right  to  retain  the  particular 
goods  in  respect  of  which  the  debt  arises.  A  general  lien  is  a 
right  to  retain  goods  in  respect  of  a  general  balance  of  an  ac- 
count. The  former  kind  of  lien  is  favored  in  law;  but  the  latter, 
having  a  tendency  to  prefer  one  creditor  above  another,  is  taken 
strictly. (x)  A  particular  lien  is  *given  by  the  common  p^,-,^-, 
law  over  goods  which  a  person  is  compelled  to  receive ;  '-  -' 
thus  carriers(j/)  and  iunkeepers(^)  have  a  lien  on  the  goods  in 
their  care ;  although  an  innkeeper  cannot  detain  his  guest's  per- 
son, or  take  his  coat  off  his  back,  to  secure  payment  of  his  bill.(a) 
A  particular  lien  is  also  given  by  law  to  every  person  who  by  his 
labor  or  skill  has  improved  or  altered  an  article  intrusted  to  his 
care  :  thus  a  miller  has  a  lien  on  the  flour  he  has  ground  for  the 
cost  of  grinding; (6)  and  a  shipwright  has  a  lien  on  a  ship  in- 
trusted to  him  to  repair  for  the  costs  of  repairing  it.(c)^     So  a  lien 

{u)  2  East,  235  ;  2  Rose,  357 ;  Smith's  Compendium  of  Mercantile  Law,  534,  5th  ed. ; 
563,  6th  ed. 

(x)  3  Bos.  and  Pul.  494. 

(y)  Skinner  v.  Upshaw,  2  Lord  Raym.  752. 

(z)  Thompson  v.  Lacey,  3  B.  and  Aid.  283,  E.  C.  L.  R.  vol.  5. 

(o)  Sunbolf «;.  Alford,  3  Mee.  and  Wels.  248.  The  lien  of  innkeepers  on  the  goods  of 
their  guests  is  now  regulated  by  stat.  26  and  27  Vict.  c.  41. 

(b)  Ex  parte  Ockenden,  1  Atk.  235. 

(c)  Franklin  v.  Hosier,  4  B.  and  Aid.  341,  E.  C.  L.  R.  vol.  6. 

•  By   the    civil    law,  and   the  general  ad-  1  Dodson,  235  ;  The  Alexander,  lb.  280;  The 

miralty  law,  material-men  have    a  lien  upon  Zodiac,  1  Harr.  325  ;  The  Vibilia ;  Buxton  v. 

the  vessel ;   Domat's  Civil  Law,    book  3,   tit,  Snec,    1   Vesey,    154;  Hoare   v.   Clement,   2 

1,  sec.  5.  Show.  338. 

But  by  the  common  law  of  England,  which         But  under   the  general  admiralty  law  in 

is  binding  on  the  Admiralty  Court,  those  who  England,   thi.s  country,   and  elsewhere,    me- 

build,   repair,    or  supply  a  domestic  vessel,  chanics,    material-men,     and    others,    doing 

have  no  lien   upon  the  vessel  herself,  except  work  on,  or  furnishing  materials  or  supplies 

the  common  law  lien  of  the  mechanic,  ari.sing  for  a  foreign  vessel,  have  a  lien   on  such  ves- 

from  his    mere  possession,  and  only  coexten-  sel,  without  any  limit  as  to  its   duration  in 

sive  with  such  possession  ;  Franklin  t;.  Hosier,  point  of  time;  Justin  v.  Ballam,   Salk.    34; 

4  B.  &  A.  341 ;   The  Neptune,  Cumberlege,  3  Ex  parte  Shank  and  others,  1  Atk.  234  ;  Wil- 

Harr.  136,  130  ;  Bland,  Ex  parte,  2  Rose,  91  ;  kins  v.  Carmichael,  1  Doug.  101  ;  Watkinson 

The  Harmonie,    1    W.    Rob.    178;    Raitt   v.  v.  Bernardiston,  2  Wms.  Rep.  367  ;  Ex  parte 

Mitchell,  4  Camp.  R.    146  ;  The  Browmina,  Halket,  3  Ves.  &  B.  135  ;  2  Rose,  194,  228 ; 

6 


82 


OF    CIIOSES   IN    POSSESSION. 


may  be  claimed  for  training  a  horse,  because  he  is  improved  by 
the  hibor  and  skill  thus  bestowed  upon  him;((:Z)  but  no  lien  can 
arise  merely  for  his  keep,(e)  unless  he  has  been  kept  by  an  inn- 


(d)  Bevan  v.  Walters,  1  Moo.  and  Mai.  2.36,  E.  C.  L.  R.  vol.  22. 

(e)  Wallace  v.  Woodgate,  1  Ry.  and  Moo.  293,  E.  C.  L.  R.  vol.  21. 
Bell,  2  Cro.  and  Mee.  304,  311;  4  Tyr.  244,  252. 


See  Sanderson  v. 


The  Ship  Fortitude,  3  Summers's  R.  228  ; 
The  Brig  Nestor,  1  Id.  74,  79  ;  The  Schooner 
Marion,  1  Story's  C.  C.  R.  68  ;  Reed  v.  The 
Hull  of  a  New  Brig,  Id.  246  ;  Budding- 
ton  V.  Stewart,  14  Conn.  R.  404  ;  Davis  v. 
A  New  Brig,  1  Gilpin's  R.  473  ;  The  Gen- 
eral Smith,  4  Wheaton's  R.  438;  Shrews- 
bury V.  The  Sloop  Two  Friends,  Bee's  Adm. 
R.  433  ;  Gardner  v.  The  Ship  New  Jersey, 

1  Peter's  Adm.    R.   22,   3;    The  Jerusalem, 

2  Gallis.  R.  345;  The  Young  Mechanic,  2 
Curtis's  C.  C.  R.  404;  Monsoon,  Sprague's 
Decs.  37  ;  Perkins  v.  Pike,  42  Maine  R.  141  ; 
The  Active,  Olcott,  Adm.  271  ;  The  Tackle, 
Ac,  of  the  America,  1  Newb.  Adm.  196. 
Whether  a  vessel  is  domestic  or  foreign,  de- 
pends upon  the  residence  of  her  owners  ;  The 
Golden  Gate,  1  Newb.  Adm.  308  ;  and  vessels 
belonging  to  one  State,  .when  in  the  ports 
of  another,  are  deemed  foreign  ;  TheChusan, 
Sprague's  Decs.  39.  Although  there  is  no 
fixed  time  within  which  this  lien  must  be  en- 
forced, yet  it  may  be  lost  by  negligence  or 
diilay,  and  when  the  rights  of  third  parties 
are  compromised,  courts  of  admiralty  will 
require  vigilance  in  parties  who  seek  their 
aid,  and  will  not  sit  to  enforce  stale  and  dor- 
mant claims;  The  Ea'stern  Star,  Ware's  R. 
186,  212  ;  Packard  v.  The  Louisa,  2  Wood. 
&  M.  48  ;  The  Mary,  1  Paine's  R.  180  ;  The 
Margaret,  3  Harr.  R.  238  ;  The  Nestor,  1 
Summers's  R.  87;  Ex  parte  Foster,  2  Story's 
R.  145;  The  Rebecca,  Ware's  R.  212;  Lillie 
Mills,  Sprague's  Decs.  307. 

The  regular  sale  of  property,  under  a  de- 
cree of  the  court,  gives  a  good  title  against 
all  the  world,  and  where  the  property  was  af- 
fected by  a  lien,  the  proceeds  are  still  affected 
by  it  in  whosesoever  hands  they  may  be  ;  Ben- 
edict's Adm.  309 ;  Gilpin's  R.  189,  649  ; 
Gardner  v.  The  Ship  New  Jersey,  1  Peters's 
Adm.  R.  223  ;  The  John,  3  Rob.  R.  288. 


In  many  of  the  States  of  this  country,  me- 
chanics and  material-men  have,  by  positive 
statutory  enactment,  a  lien  on  domestic  ves- 
sels for  work  done  on  or  materials  furnished 
for  such  vessel  ;  Scates,  Treat  &  Black,  Stats. 
111.  (1858),  p.  785  ;  Revised  Stat,  of  Indiana, 
(1838),  120  ;  Louisiana,  Civil  Code,  Art.  2748. 
A  similar  law  exists  in  Missouri  and  in 
Maine,  though  the  lien  only  continues  for 
four  days  from  the  time  the  work  was  com- 
pleted, or  materials  furnished  ;  Revis.  Stats. 
Maine  (1867),  p.  569.  In  Pennsylvania,  the 
lien  continues  until  the  vessel  shall  have  pro- 
ceeded on  the  voyage  next  after  the  work 
done,  or  materials  furnished,  and  no  longer  ; 
Pardon's  Dig.  (1861),  x.  62;  and  by  an  act  of 
the  20th  of  April,  1858,  vessels  navigating  the 
rivers  Alleghany,  Monongahela,  or  Ohio,  are 
made  liable  to  a  like  lien,  provided  suit  shall 
be  commenced  on  said  lien  within  two  years 
after  the  work  is  done,  or  materials  furnished; 
lb.  p.  64.  In  New  York,  it  ceases  after  ten 
days  frorn  the  departure  of  the  vessel  from 
the  port  where  the  debt  was  contracted,  to 
some  other  port  in  the  State,  and  immediately 
on  the  vessel  leaving  the  State  ;  N.  Y.  Revised 
Statutes  (1859),  pp.  795,  796;  but  the  debt 
must  amount  to  fifty  dollars  or  upwards.  In 
New  Hampshire,  it  exists  for  four  days  after 
the  work  is  completed  ;  N.  Hampshire  Com- 
piled Stat.  296  ;  in  Florida,  30  days  ;  Thomp- 
son's Dig.  412.  In  New  Jersey,  debts  of 
twenty  dollars  and  upwards,  for  work  and 
materials,  are  made  liens  for  the  period  of 
nine  months  ;  Nix.  Dig.  (1861),  p.  529.  In 
Massachusetts,  the  lien  may  be  for  any 
amount,  and  will  continue  until  the  debt  is 
paid;  Gen.  Stats.  Mass.  (1860),  p.  768.  But 
these  liens  are  generally  postponed  to  the 
claims  of  mariners  for  wages.  In  Connecti- 
cut, Vermont,  Maryland,  Ohio,  Arkansas, 
Mississippi,  and  Texas,  there  does  not  seem  to 
be  any  such  enactment. 


OF   TROVER,  BAILMENT,  AND   LIEN.  83 

keeper,  who  is  compelled  to  take  him  in.(/)'  A  lien  on  goods  is 
not  sufficient  to  warrant  the  sale  of  them,(^)  nor  does  it  authorize 
the  possessor  to  charge  for  their  standing. (A)  A  particular  lien 
also  arises  in  the  case  of  salvage,  or  rescuing  a  ship  or  its  lading 
from  the  perils  of  the  sea  or  the  queen's  enemies,  for  the  trouble 
and  risk  incurred ;(/)  but  this  kind  of  lien  has  been  modified  by 
the  Merchant  Shipping  Act,  1854,  which  provides  for  the  ap- 
pointment of  public  receivers  of  all  wreck,  into  whose  hands  any 
person,  not  being  the  owner,  who  finds  or  takes  possession  of 
any  wreck,  *is  bound  to  deliver  it  as  soon  as  possible. (J)  r-^^r.-. 
The  lien  of  a  shipowner  for  freight  is  now  regulated  by  '-  -^ 
the-  Merchant  Shipping  Act  Amendment  Act,  1862. (/;) 

A  general  lien,  when  it  does  not  arise  by  express  contract,  or 
from  a  contract  implied  by  the  course  of  dealing  between  the  par- 
ties,(/)  accrues  in  consequence  of  the  custom  of  some  trade  or 
profession  ;  and  it  may  be  local  also,  that  is,  confined  to  some  par- 
ticular place. (m)  It  obtains  in  many  trades,  such  as  wharfin- 
gers,(??)  dyer8,(o)  calico  printers,(j9)  factors,(5')2  policy  brokers,(r) 

(/)  Johnson  v.  Hill,  3  Stark.  172,  E.  C.  L.  R.  vol.  3. 

(g)  Thames  Iron  Works  Company  v.  Patent  Derrick  Company,  1  John  and  H.  93. 
(A)  British  Empire  Shipping  Company  t?.  Somes,  1  E.  B.  and  E.  353,  E.  C.  L.  R.  vol.  96. 
(i)  Hartford  v.  Jones,  1  Lord  Raym.  393  ;  Baring  v.  Day,  8  East,  57. 
ij)  Stat.  17  &  18  Vict.  c.  104  ;  amended  by  stats.  18  &  19  Vict.  c.  91  ;  24  Vict.  c.  10,  25 
A  26  Vict.  c.  63. 

(X-)  Stat.  25  &  26  Vict.  c.  63,  ss.  66,  78. 

(/)  Simmond  v.  Hibbert,  1  Rus.  &  Myl.  719. 

(m)  Holderness  v.  Collinson,  7  Barn.  &  Cress.  212,  E.  C.  L.  R.  vol.  13. 

(w)  Naylor  v.  Mangles,  1  Esp.  109. 

(o)  Savill  V.  Burchard,  4  Esp.  53.     See,  however.  Close  v.  Waterhouse,  6  East,  523,  n. 

(p)  Weldon  v.  Gould,  3  Esp.  268. 

{q)  Houghton  V.  Matthews,  3  Bos.  &  Pul.  488  ,  Cowell  v.  Simpson,  16  Ves.  280. 

(r)  Man  v.  Shiffner,  2  East,  523. 


1  In  Pennsylvania  a  livery-stable  keeper  has  of  the  legislature  of  that  State  ;  Purd.  Dig., 

a  lien  for  the  keep  of  a  horse  ;  Young  i;.  Kim-  suppl.  1344. 

ball,  23  Pa.  St.  R.  193;  and  the  statute   law  ^  ^    factor,  is  sometimes  said  to  be  one, 

of  that   State   authorizes   a  sale   under   the  who  buys  or  sells  upon  commission,  or  as  an 

terms  of  the  act,  to  satisfy  the  lien  of  livery-  agent  for  others  ;  3   Kent's  Com.    622;  but 

stable   keepers   and  innkeepers;   Purd.    Dig,  more  .strictly,  the  term  is  only  applicable  to  a 

536.     A  power  of  selling  goods,  wares,  mer-  consignee  for  sale  ;   Story  on  Agency,  ^  111. 

chandise,  or  other  property,  for  the  satisfaction  At  least,  only  such  a  factor  as  is  last  describ- 

of  their  liens,  for  the  costs  or  expenses  of  car-  ed,  has  a  lien  for  the   general   balance  of  his 

riage,  storage,  or  labor  bestowed  on  the  same,  account  against  his    principal,    or,    in  other 

is  likewise  given   to  commission  merchants,  words,  a  general   lien  ;   Russell   on    Factors, 

factors,  and  all  common  carriers,  by  an  act  204,  212. 


84  OF   CIIpSES   IN    POSSESSION. 

and  bankers,(.s)  and  perhaps  also  common  carriers. (<)  Solicitors 
and  attorneys  have  also  a  lien  on  all  the  deeds  and  documents  of 
their  clients  in  their  possession  for  their  professional  charges  gen- 
erally -.{ii)  but  this  doctrine  is  to  be  taken  in  connection  with  the 
peculiar  nature  of  title-deeds,  which  being  the  sinews  of  the  land, 
follow  the  seisin  of  it,  and  may  therefore  be  held  by  the  client 
only  for  a  limited  interest.  Thus,  if  a  tenant  for  life  should  leave 
the  title-deeds  of  the  land  in  the  hands  of  his  solicitor,  the  lien  of 
the  solicitor  for  his  professional  charges  would  be  coextensive  only 
with  his  client's  interest,  and  on  the  client's  decease  the  solicitor 
would  be  bound  to  deliver  up  the  deeds  to  the  remainderman, 
r*Qm  ^^t,^ough  his  *charges  might  remain  unpaid.(i;)  So,  if  the 
*-  -■  client  should  be  a  mortgagee,  the  solicitor  having  the  deeds 
would  be  bound  to  deliver  them  to  the  mortgagor,  on  the  recon- 
veyance of  the  property,  on  payment  to  the  mortgagee  of  all  prin- 
cipal and  interest ;  for  on  such  reconveyance  the  mortgagee  ceased. 

(5)  Davis  V.  Bowsher,  5  T.  R.  488  ;  Brandao  v.  Barnett,  3  C.  B.  519,  530,  E.  C.  L.  R. 
vol.  54. 

(0  See  Rushforth  v.  Hadfield,  6  East,  519  ;  7  East,  224 ;  Aspinwall  v.  Pickford,  3  Bos.  & 
Pul.  44,  note. 

{u)  Stevenson  v.  Blakelock,  1  Mau.  &  Sel.  535 ;  Ex  parte  Sterling,  16  Ves.  258 ;  Ex  parte 
Pemberton,  18  Ves.  282. 

(v)  Davies  v.  Vernon,  6  Q.  B.  443,  447,  E.  C.  L.  R.  vol.  51. 


In  the  year  1755,  this  right  to  a  lien  for  and  factor  ;  and  there  does  not  seem  to  be  any 

the  general  balance    of  a   factor's  account,  authority   for    extending    the  lien   over  any 

seems  first  to  have  been  solemnly  adjudged  in  property   of    the  principal   in   the  hands   of 

England,  in    the  case  of  Kruger  v.  Wilcox  ;  the  factor,   other  than  that  which  has  been 

Ambler,  252.  consigned  for  sale  by  the  former  to  the  latter, 

Any  agent  or  broker,   however,  has  a  par-  so  as,   for  example,    to  embrace  goods  pur- 

ticular  lien  upon  the  goods  of  his  principal  chased  by  the   factor  for  his  principal.     See 

while    in    his  possession.       This   lien,    is    a  also  Wilmerding  v.  Hart,  Hill  &  Denio's  R. 

right  to  retain  any  article  of  his  principal,  305. 

for  some  charge  or  claim  growing  out  of,   or        It  has  been  held  by  Lord  Ellenborough,  at 

connected  with,  that  identical  thing;  such  as  Nisi  Prius,  in  Boardmant;.  Sill,  cited  1  Camp, 

for  labor,  or   services,  or   expenses,  upon  it  ;  410,  note,  that  a   factor   or  broker  will  lose 

Story  on  Agency,  ^  354.  his  lien,   if,  when  the   property  is  demanded 

The  liens  above   referred  to,  whether  gen-  of  him,  he  claims  to  retain  it  on  a  different 

eral  or  particular,  are  implied  by  law,  unless  ground   than    that    of  the    lien — making   no 

they  have  been  waived  by  agreement.  mention  of  it ;  but  the  correctness  of  this  de- 

But  the  general  lien  of  a  factor  proper  is  cision  may  well  be  doubted.     But  see  White 

not  favored  by  the  law.     Thus  in  Houghton  v.  Gainer,  2  Bing,  23.     But  if  a  factor  con- 

V.  Matthews,  3  Bos.   &  Pul.  485,  it  was  held  sent  to  a  sale  by  the  owner,  or  conceal  from 

that  a  general  lien  did  not  attach,  in  respect  the  purchaser  his   claim  on  the  property,  his 

to  a  debt  which  arose  prior  to  the  time  of  the  lien  is  gone  ;  Gragg  v.  Brown,  44  Maine  R. 

commencement  of  the  relation   of   principal  157. 


OF    TROVER,  BAILMENT,  AND    LIEN.  85 

to  have  any  interest  in  the  land.(a:)  And  in  like  manner  if  the 
client  should  be  a  mortgagor,  the  solicitor  would  have  no  right 
to  retain  the  deeds  as  against  the  prior  claim  of  the  mortgagee  ;[y) 
and  if  the  client  should  be  a  trustee,  the  deeds  must  be  given 
up  for  the  purposes  of  the  trust. (z)  This  lien  also  extends  only 
to  chai-ges  strictly  professional,(rt)  and  to  documents  in  the  pos- 
session of  the  attorney  or  solicitor  in  his  professional  character  ;{b) 
but  it  has  been  held  that  such  lien  is  assignable,  together  with 
the  debt  and  documents,  to  a  third  person  not  a  solicitor  or  attor- 
ney, (c)  A  mere  certificated  conveyancer  has  no  general  lien  on 
the  documents  in  his  hands.(6?) 

Lien,  then,  of  whatever  kind,  is  merely  a  right  to  retain  the 
possession  of  the  goods.  This  right  of  possession  enables  the  per- 
son who  has  been  in  possession  by  virtue  of  the  lien  to  main- 
tain an  action  of  trover  for  the  goods  ;(e)  but  the  property  in  the 
goods  still  remains  with  the  owner ;  and  if  the  person  having  the 
lien  should  give  up  the  possession  of  the  goods,  his  lien  will  be 
*lost;(/)  the  owner's  property  in  them  will  draw  to  it  the  p-,,qi-i 
right  of  possession,  and  enable  him  to  maintain  an  action 
of  trover.(^)  And  if  the  person  having  the  lien  should  take  a 
security  for  his  debt,  payable  at  a  distant  day,  his  lien  would  on 
that  account  be  lost,  as  it  would  be  unreasonable  that  he  should 
detain  the  goods  till  such  future  time  of  payment  ;{h)  and  in  this 
case  also  an  action  of  trover  may  be  maintained  by  the  owner  of 
the  goods,  by  virtue  of  the  right  of  possession  now  accrued  to 
him  in  respect  of  his  property. (e) 

In  all  the  above  cases  of  finding  of  goods,  bailment,  and  lien,  it 

(x)  Wakefield  v.  Newbon,  6  Q   B.  276,  E.  C.  L.  R.  vol.  51. 

(y)  Smith  v.  Chichester,  2  Dr.  &  War.  893  ;  Blunden  v.  Desart,  Id.  405  ;  Pelly  v.  Wathen. 
7  Hnre,  351  ;   1  De  Gex,  Mac.  &  Gord.  16. 
(z)  Baker  v.  Henderson,  4  Sim.  27. 

(a)  The  King   v.   Sankey,  5  Ad.  &  Ell.  423,  E.  C.  L.  R.  vol.  31  ;  Worrell   v.  Johnson,   2 
Jae.  &  Walk.  218. 

(b)  Champernown  v.  Scott,  6  Madd.  93  ;  Balch  v.  Symes,  T.  &  Russ.  87. 

(c)  Bull  V.  Faulkner,  2  De  G.  A  S.  772,  sed  qu. 

(d)  Hollis  V.  Claridge,  4  Taunt.  807  ;  Steadman  v.  Hockley,  15  Mee.  &  Wels.  553. 

(e)  Legg  V.  Evans,  6  Mee.  &  Wels.  36.  . 
•(/)  Kruges  v.  Wilcox,  Ainb.  254. 

(g)  Sweet  V.  Pym,  1  East,  4. 

(A)  Cowell  V.  Simp.son,  16  Ves.  275. 

(i)  Hewison  v.  Guthrie,  2  New  Gas.  756,  759,  E.  C.  L.  R.  vol.  29. 


86  OF   CIIOSES   IN   POSSESSION. 

appears  clear,  therefore,  that  the  property  in  the  goods  is  still 
simply  vested  in  one  party  only,  although  the  right  to  their  imme- 
diate possession  may  be  in  another  party,  and  the  actual  posses- 
sion possibly  in  a  third. 


[*32]  *CHAPTER    III. 

OF    THE    ALIENATION    OF    CHOSES    IN    POSSESSION. 

Choses  in  possession  have  always  been  freely  alienable  from 
one  person  to  another.  The  feudal  principles  of  tenure,  which  in 
ancient  times  opposed  the  alienation  of  landed  estates,  could  have 
no  application  to  the  then  insignificant  subjects  of  personal  prop- 
erty ;  although  the  full  right  of  testamentary  disposition  was  not, 
as  we  shall  hereafter  see,  enjoyed  in  early  times.  But,  though  the 
property  in  personal  chattels  may  be  freely  aliened,  it  is  impossi- 
ble for  a  man  to  make  a  valid  grant  in  law  of  that  in  which  he  has 
no  actual  or  potential  property,  but  which  he  only  expects  to  have.^ 
A  person  who  has  an  interest  in  land  may  grant  all  the  fruit  which 

1  An  agreement  to   sell  a  chattel  which  is  proof  that  it  had  long  been   the   course  of 

in  an   unfinished   state,  to  be  delivered  at  a  business,  for  curriers  in  the  city  to  purchase 

future  time,  when   finished,  is  an  executory  leather  of  tanners  in   the  country  while  in 

contract,  upon  which  a  present  property  does  process  of  manufacture,  to  be  delivered  when 

not   pass,    though    an   action  will  lie   for   a  tanned,  and  that  advances  were  frequently 

breach  of  the  agreement;  Pritchett  «?.  Jones,  made  on  such  purchases;   Ibid.     And  to  the 

4   Rawle's  R.    260.     When,   therefore,  A.  (a  same  principles,  see  Nesbit  v.  Burry,   25  Pa. 

tanner  in  the  country),  on  the  olst  of  July,  St.  R.    208  ;    Dickson    v.    Forsyth,    1  Grant's 

1828,  in  consideration  of  a  pre-existing  debt,  R.   26;  Andrews  v.   Durant,   1    Kernan's  R. 

contracted  to  sell  to  B.  (a  currier  in  the  city),  35;  Hewlett'.  Flint,   7  Gal.  R.  264;   Petten- 

a   quantity  of  hides  and   skins,  then   in  the  gill  v.  Merrill,  47  Maine  R.  109. 

vats  of  the  vendor,  undergoing  the  process  of  A  sale  is  an   executed  contract,  to  consti- 

tanning,  but  which  were  susceptible  of  inime-  tute  which  delivery  in  fact,  or  in  law,  is  in- 

diate   delivery,  and   agreed  to  deliver  them  dispensable,  and  it  cannot  be  given  of  a  thing 

on  or  before  the  12th  of  November  following,  which  has  not  yet  fully  come  into  existence  ; 

some  of  them  at  fixed  prices,  and   others  at  Winslow    v.    Leonard,     24    Pa.    St.    R.    14; 

the  market  price,  to   be  passed  to  the  credit  Clemens  v.  Davis.   7  Pa.  St.  R.  263.     But, 

of  A.,  to  settle  his  account,  it  was  held,  that  where  a  contract  is  made  for  the  purchase  of 

no    immediate    property   vested    in    B.,    and  an  article  to  be  delivered  when  finished,  and 

that  the  goods  were  liable  to  execution  as  the  afterwards  while  the  article  is  still  in  an  un- 

property   of    A.,    notwithstanding    that   the  finished  state,  the  original  contract  is  aban- 

transaction  was  an  open  one,  and  there  was  doned,  and  the  purchaser  agrees  to  take  the 


OF    THE   ALIENATION   OF    CHOSES   IN   POSSESSION. 


87 


may  grow  upon  it  hereafter. (a)  So  a  grant  of  tlie  next  year's 
wool  of  all  the  sheep  which  a  man  now  has  is  valid,  because  he 
has  a  potential  property  in  such  wool.(6)  But  a  grant  of  the  wool 
of  all  the  sheep  which  a  man  ever  shall  have  is  void.(c)  And  in 
the  same  manner  the  assignment  of  a  man's  stock  in  trade  passes 
only  such  articles  as  are  his  property  at  the  time  he  executes  such 
assignment,  and  will  not  comprise  any  other  articles  which  he  may 
afterwards  purchase  ;((i)  not  even  if  the  instrument  of  assignment 
should  purport  to  convey  all  goods  which  should  at  any  time  there- 
after he  in  or  upon  his  dwelling-house. (e)  The  property  in  goods 
to  be  hereafter  *acquired  may  however  be  effectually  passed  p^ooi 
by  an  assignment  thereof  in  equity  coupled  with  a  license  ^  -' 
to  seize  them.(/) 

(a)  Grar.tham  v.  Hawley.  Hob.  132  ;  Fetch  v.  Tutin,  15  Mee.  &  Wels.  110. 

(b)  Per  Pollock,  C.  B.,  15  Mee.  &  Wels.  116. 

(c)  Com.  Dig.  tit.  Grant   (D.) 

(d)  Taphill  v.  Hillman,  6  Man.  &  Gr.  245,  E.  C.  L.  R.  vol.  46,  S.  C.  7  Scott,  N.  R.  967. 

(e)  Lunn  v.  Thornton,  1  C.  B.  379,  E.  C.  L.  R.  M.  50  ;  Gale  v.  Burnell,  7  Q.  B.  850,  E. 
C.  L.  R.  vol.  53. 

(/)  Congreve  v.  Evetts,  10  Exch.  293  ;  Hope  v.  Hayley,  5  E.  &  B.  830  ;  E.  C.  L.  R.  vol. 
85  ;  Allatt  V.  Carr,  Exch.  6  W.  R.  578  ;  Chidell  v.  Galsworthy,  6  C.  B.  N.  S.  471  ;  E.  C.  L. 
R.  vol.  95  ;  Holroyd  v.  Marshall,  H.  of  Lords,  9  Jur.  N.  S.  213  ;  Reeve  v.  Whitmore,  L.  C, 
12  W.  R.  113,  qu.  ? 


article  as  unfinished,  a  delivery  under  the 
new  contract  is  good  as  against  an  execution 
subsequently  levied  ;  Ibid. 

A  contract  by  a  merchant  to  deliver  hides 
to  a  tanner,  to  be  charged  at  cost  and  five 
per  cent,  commission,  and  interest  after  six 
months,  and  when  tanned  to  be  returned  to 
the  merchant  to  be  sold  by  him,  and  out  of 
the  sale  the  first  cost  and  five  per  cent,  to  be 
deducted,  and  the  balance  to  be  paid  to  the 
manufacturer,  is  such  a  sale,  as  will  subject 
the  hides  to  levy  as  the  property  of  the  manu- 
facturer ;  Jenkins  v.  Eichelberger,  4  Watt's 
R.  121.  But  gee,  Hyde  v.  Cookson,  21 
Barb.  R.  92. 

Where  wheat  was  sent  to  a  miller,  upon  a 
contract  that  the  sender  might  have  the  same 
amount  back  again,  or  as  much  flour  as  it 
would  make,  or  the  price  thereof,  the  miller 
to  mix  that  sent  with  his  own  ;  it  was  held 
that  it  was  a  sale  to  the  miller.  Carli.sle  v. 
Wallace  12  Ind.  R.  252.  And  see  Dick  v. 
Lindsay,  2  Grant's  Cases,  431. 

An  agreement  whereby  goods  are  consigned 
by  A.  to  B.,  to  be  sold  at  not  less  than  the 
invoice  prices,  the  invoice  prices  to  be  paid 


over  to  A.,  and  all  that  the  goods  should  sell 
for  above  those,  to  be  retained  by  B.,  and 
such  portion  of  the  goods  as  remained  to  be 
returned  to  A.,  does  not  vest  the  property  in 
B.  ;  McCullough  v.  Porter,  4  Wat.  &  Serg. 
R.  179. 

A  coal  company  agreed  with  a  contractor, 
to  sell  him  a  scow-boat  on  the  conditions  ex- 
pressed in  the  company's  printed  regulations, 
one  of  which  was,  that  the  company  would 
furnish  its  contractors  with  boats  for  cash  at 
cost,  or  on  credit,  with  interest,  but  that  the 
ownership  should  remain  in  the  company  till 
all  the  instalments  of  the  price  were  paid, 
when  a  bill  of  sale  should  be  made  out ;  the 
company  were  to  pay  the  tolls,  and  the  con- 
tractor to  take  freight  from  no  other  quarter. 
The  boat  still  continued  in  the  register  of  the 
company  ;  its  original  nuuiber  being  painted 
in  letters  and  figures  on  the  stern,  and  was  in 
no  way  distinguishable  from  the  other  boats 
of  the  company.  Held,  that  the  property 
did  not  pass  as  against  creditors  of  the  con- 
tractors, until  the  boat  was  paid  for  ;  Lehigh 
Co.  V.  Field,  8  Wat.  *  Sorg.  R.  232.  See 
also,  Clough  V.  Ray,  20  N.  II.  R.  558. 


88  OF  cnosES  in  possession. 

The  manner  in  which  the  alienation  of  personal  chattels  is  ef- 
fected, is  in  many  respects  essentially  different  from  the  modes  of 
conveying  real  estate.  In  ancient  times,  indeed,  there  was  more 
similarity  than  there  is  at  present.  The  conveyance  of*land  was 
then  usually  made  by  feoft'ment,  with  livery  of  seisin,  which  was 
nothing  more  than  a  simple  gift  of  an  estate  in  the  land,  accom- 
panied by  delivery  of  possession. (^)  This  gift  might  then  have 
been  made  by  mere  word  of  mouth  ;(A)  but  the  Statute  of 
Frauds(/)  made  writing  necessary  ;  and  now  every  conveyance  of 
landed  propert}^  is  required  to  be  by  deed, (J)  Personal  chattels, 
on  the  contrary,  are  still  alienable  by  mere  gift  and  delivery ; 
though  they  may  be  disposed  of  by  deed ;  and  they  are  also 
assignable  by  sale^  in  a  manner  totally  different  from  the  convey- 
ance requisite  on  the  transfer  of  real  estate.^  Each  of  these  three 
modes  of  convej-ance  deserves  a  separate  notice. 

1.  And  first,  personal  chattels  are  alienable  by  a  mere  gift  of 
them,  accompanied  by  delivery  of  possession.  For  this  purpose 
no  deed  or  writing  is  required,  nor  is  it  essential  that  there  should 
be  a  consideration  for  the  gift.  Thus,  if  I  give  a  horse  to  A.  B., 
and  at  the  same  time  deliver  it  into  his  possession,  this  gift  is 
complete  and  irrevocable,  and  the  propei-ty  in  the  horse  is  thence- 
r*q4.1  *foi'ward  vested  in  A.  B.(/t)  But  if  I  purport  to  assign 
-■  the  horse,  and  yet  retain  the  possession,  the  gift,  though 
made  by  writing  (so  that  it  be  not  a  deed),  is  absolutely  void  at 
law,(^)  and  equity  will  give  no  relief  to  the  donee.(m)  It  may, 
however,  be  observed,  that  if  the  donor  should  not  attempt  to 
part  with  the  subject  of  gift,  but  should  declare  that  he  keeps 
possession  of  it  in  trust  for  the  donee,  equity  will  seize  on  and  en- 

(g)   See  Principles  of  the  Law  of  Real   Property,  113,  2(1  ed.  ;  118,   3d  &  4th  eds.  ;  121, 
6th  ed.  ;   127,  6th  ed. 

(h)   See  Principles  of  the  Law  of  Real   Property,  117,  2d  ed.  ;   122,  3d   &,  4th   eds.  ;  128, 
5th  ed.  :  134,  6th  ed. 

(i)   Stat.  29  Car.  II,  c.  3,  ss.  1,  2. 

(j)   Stat.  8  &  9  Vict.  c.  106,  s.  3.  • 

(k)  2  Blackf.  Com.  441. 

(I)   Irons  r.  Smallpiece,  2  Barn.  &  Aid.  551  ;  Miller  v.  Miller,  3  P.  Wms.  356.     See  also, 
Shower  v.  Pilck,  4  Ex.  Rep.  478. 

(m)   Antrobus  v.  Smith,   12  Ves.  39,  46  ;  Edwards  v.  Jones,   1  My.  &  Cr.  226  ;  Dillon  v. 
Coppin,  4  My.  &  Cr.  647,  671. 
$. 

1  By  the  law  of  Pennsylvania,  the  title  to    out  a  written   bill  of  sale  ;  Weaver  v.  Th« 
a  ship,  passes  by  actual  sale  and  delivery,  as    Susan  6.  Owens,  1  Wall.  Jr.  R,  366. 
in  the  case  of  other  personal  chattels,  with- 


OF   THE   ALIENATION    OF    CHOSES   IN    POSSESSION. 


89 


force  this  trust,  altlioiigli  voluntarily  created.(?i)  In  some  cases 
it  is  not  possible  to  make  an  immediate  and  complete  delivery  of 
the  subject  of  gift ;  and  in  these  cases,  as  near  an  approach  as 
possible  must  be  made  to  actual  delivery  ;  and  if  this  be  done  the 
gift  will  be  effectual.  Thus  if  goods  be  in  a  warehouse,  the  de- 
livery of  the  key  will  be  sufficient  ;(o)  timber  may  be  delivered 
by  marking  it  with  the  initials  of  the  as8ignee,(^)  and  an  actual 
removal  is  not  essential  to  the  delivery  of  a  haystack. (^)  But  the 
delivery  of  a  part  of  goods  capable  of  actual  deUvery,  is  not  a 
sufficient  delivery  of  the  whole. (r^ 

{n)  Ellison  v.  Ellison,  6  Ves.  656  ;  Ex  parte  Dubost,  18  Ves.  140,  150  ;  Vandenberg  v. 
Palmer,  4  Kay  &  John.  204.  The  case  of  Scales  v.  Maude,  6  De  G.,  M.  &  G.  43,  51,  is  not 
to  be  relied  on. 

(o)  West  V.  Skip,  1  Ves.  Sen.  244  ;  Ryall  v.  Rowles,  1  Ves.  Sen.  362  ;  1  Atk.  171 ;  Ward 
V.  Turner,  2  Ves.  Sen.  443. 

(p)   Stoveld  V.  Hughes,  14  East,  308. 

{g)  Chaplin  v.  Rogers,  1  East,  190. 

(r)  Per  Pollock,  C.  B.,  14  Mee.  &  Wels.  37,  correcting  a  dictum  of  Taunton,  J.,  2  Ad.  <t 
Ell.  73. 


1  Where  there  is  a  contract  for  a  finished 
article,  as  a  steam  engine,  a  delivery  of  its 
various  part^  as  they  are  made,  will  not 
change  the  property  ;  Shell  v.  Heywood,  4  Pa. 
St.  R.  529.  This  was  the  case  of  a  contract 
entered  into  with  machinists,  for  the  con- 
struction of  a  steam  engine  and  fixtures  for 
a  grist-mill  ;  portions  of  the  machinery,  viz., 
the  boilers  and  balance-wheel,  were  deliv- 
ered, and  the  boilers  fixed  in  a  building  at- 
tached to  the  mill.  The  purchaser  became 
edibarrassed,  and  in  an»agreement  in  writing 
between  him  and  the  attorney  of  the  manu- 
facturers, it  was  stated  that  the  boilers,  and 
the  machinery  attached,  or  to  be  attached  to 
them,  were  the  property  of  the  manufac- 
turers, and  they,  by  their  attorney,  agreed 
to  leave  the  same  where  they  were  for  three 
months,  in  order  to  give  time  to  the  pur- 
chaser to  make  an  arrangement  with  his 
creditors  ;  and  in  the  event  of  his  inability 
to  make  such  arrangement,  then  the  manu- 
facturers were  to  be  left  to  their  legal  remedy 
for  the  materials  already  furnished,  or  to  the 
removal  of  the  same,  at  their  option.  The 
eherifi"  Bub.sequently  levied  on  and  sold  the 
boilerg.and  wheel,  under  an  execution  against 
the  mill-owner,  as  personal  property,  notwith- 
standiog  notice  given  to  him  of  the  claim  of 


the  machinists.  Held,  that  the  property  had 
remained  in  the  latter,  and  that  trespass 
would  lie  by  them  against  the  sheriff,  for 
selling  the  machinery  ;  Ibid. 

Where  A.  agreed  to  furnish  B.  with  a  ma- 
chine, to  be  put  up  by  A.  in  the  mill  of  B.,  B. 
to  cart  the  machine  to  the  mill,  and  if  B.  was 
satisfied  with  the  way  it  worked,  to  pay  for  it, 
otherwise,  A.  to  take  it  away,  and,  before  it 
was  entirely  put  up,  it  was  tried  and  found 
not  to  work  satisfactorily,  and  on  the  same 
day  was  attached  as  the  property  of  B.,  it 
was  held,  that  the  property  had  not  been 
transferred  ;  Phelps  v.  Willard,  16  Pick.  R. 
29.  A.  delivered  cotton-yarn  to  B.,  on  a  con- 
tract that  the  same  should  be  manufactured 
into  plaids  ;  B.  was  to  find  the  filling,  and 
was  to  weave  so  many  yards  of  the  plaids,  at 
15  cents  per  yard,  as  was  equal  to  the  value 
of  the  yarn  at  05  cents  per  pound.  Held, 
that  by  the  delivery  of  the  yarn  to  B.  the 
property  thereof  vested  in  him;  Buft'um  v. 
Merry,  3  Mason's  R.  478.  Where  one  con- 
tracted to  burn  a  kiln  of  bricks,  for  which 
he  was  to  receive  10,000  of  them  when  burnt, 
and  he  performed  his  part  of  the  contract,  it 
was  held,  that  he  had  no  vested  interest  in 
the  bricks,  which  hi.s  creditor  could  ntlnch, 
till  actual  or  constructive  delivery  ;   Brewer 


90  OF    CIIOSES   IN    POSSESSION. 

When  goods  are  in  the  custody  of  a  simple  hailee,  such  as  a 
wharfinger  or  carrier,  the  possession  of  such  hailee  is,  as  we  have 
seen,(s)  constructively  the  possession  of  the  hailor;  and  either 
the  hailor  or  hailee  may  maintain  an  action  of  trover  in  respect 
l-.  ,  of  the  goods.  *This  constructive  possession  of  the  hailor 
may  he  delivered  hy  him  to  a  third  person,  hy  making  as 
near  an  approach  to  actual  delivery  as  is  possihle  under  the  cir- 
cumstances of  the  case.  By  the  custom  of  Liverpool  the  delivery 
of  goods  in  another  person's  warehouse  is  effected  hy  merely 
handing  over  a  delivery  order  ;{t)  and  the  property  in  wines  in 
the  London  Docks  appears  to  pass  hy  the  indorsement  and  deliv- 
ery of  the  dock  warrant. (i^)  But  in  the  ahsence  of  a  custom  to 
the  contrarj^,  it  would  seem  that  there  caii  he  no  legal  delivery  of 

(s)    Ante,  p.  26. 

(0  Dixon  V.  Yates,  5  Barn.  &  Adol.  31.3,  E.  C.  L.  R.  vol.  27;  and  see  Greaves  v.  Hepke, 
2  B:irn.  &  Aid.  131  ;   King.sford  v.  Merry,  1  Hurl.  &  N.  503. 

(«)  Ex  parte  Davenport,  Mon.  &  Bl.  165.  Delivery  orders  are  now  suVy'eet  to  a  stamp 
duty  of  one  penny,  and  dock  warrants  to  a  stamp  duty  of  threepence,  by  statutes  23  Vict, 
c.  15,  and  23  &  24  Vict.  c.  111. 


V.  Smith,  3  Greenl.  R.  44.  A  contract  was  restored,  though  in  an  altered  form,  the  prop- 
made  in  France  between  A.  and  B.,  by  which  erty  is  not  changed  ;  Moore  '.  Holland,  39 
certain  goods  were  to  be  procured  to  be  Maine  R.  307.  AVhen  the  owner  of  coal-pits, 
manufiictured  by  A.,  and  transmitted  by  him  which  were  in  process  of  burning,  sold  the 
through  B.'s  agents  at  Havre,  with  instruc-  charcoal  which  might  be  taken  therefrom,  at 
tions  as  to  their  further  trnnsiuissions  ;  two  a  specified  price  for  each  100  bushels,  and 
cases  of  goods  were  sent  to  Havre,  and  for-  agreed  that  he  would  complete  the  burning 
warded  by  B.'s  agents,  with  bills  of  lading,  and  draw  the  coal  to  the  vendee's  place  of 
in  one  vessel,  the  invoice  of  one  of  the  cases  business,  and  the  vendor  accordingly  contin- 
having  been  gent  by  a  previous  vessel.  The  ued  to  have  charge  of  the  coal  until  it  was 
latter  case,  having  arrived  in  a  different  attached  by  his  creditors,  before  it  had  been 
vessel  from  that  in  which  the  invoice  was  measured  and  delivered  to  the  vendee,  it  was 
sent,  was  not  claimed,  and  was  sent  to  the  held,  that  the  vendee  acquired  by  the  con- 
public  storehouse,  where  it  was  burnt.  Held,  tract  no  property  in  the  co.nl,  even  as  between 
that  there  was  no  sale  by  A.  to  B.,  but  only  a  himself  and  the  vendor;  Hale  v.  Huntley, 
contract  to  deliver  goods  ;  Low  v.  Andrews,  21  Vt.  {C^  Washb.)  R.  147. 
]  Story's  R.  38.  A  contract  was  made  with  a  eoachmaker, 
It  is  true,  that  the  sale  of  a  thing  not  in  to  make  a  buggy  for  a  specified  price,  and, 
existerce,  is,  upon  general  principles,  inope-  before  the  completion  of  the  buggy,  the  par- 
rative,  being  merely  executory,  and  when  ties  came  to  a  settlement,  and  the  price  was 
the  thing  afterwards  to  be  produced,  is  the  paid,  with  an  understanding  that  it  was  to 
product  of  land,  or  anything  of  like  nature,  be  finished,  and  then  delivered.  Held,  that 
the  owner  of  the  principal  thing  may  retain  the  property  in  the  buggy  vested  in  the  pur- 
the  general  property  of  the  thing  produced,  chaser  from  the  time  of  the  payment  of  the 
unless  there  be  fraud  in  the  contract ;  Smith  money  ;  Butterworth  v.  McKinly,  11  Humph. 
V.  Atkins,  18  Vt.  (3  Washb.)  R.  461 ;  but  R.  206. 
when  the  identical  thing  delivered    is  to  be        See  ante,  note  (1),  p.  32. 


or    THE    ALIENATION   OF    CHOSES    IN    POSSESSION.  91 

ofoods  into  the  hands  of  a  third  person  without  the  consent  of  the 
warehouseman  or  wharfinger  in  whose  custody  the  goods  are.(x) 
When  goods  are  at  sea,  the  deUvery  of  the  bill  of  lading,  after 
its  indorsement,  is  a  delivery  of  the  goods  themselves ;(?/)  for  it 
is  not  possible,  in  this  case,  to  make  any  nearer  approach  to-  an 
actual  delivery. (2;) 

2.  The  next  method  of  alienating  chattels  personal  is  by  deed. 
Every  deed  imports  a  consideration; (a)  for  it  was  anciently  sup- 
posed, that  no  person  would  do  so  solemn  an  act  as  the  sealing 
and  delivery  of  a  deed  without  some  sufficient  ground.  The 
presence  of  this  implied  consideration  renders  a  deed  sufficient 
of  itself  to  pass  the  property  in  goods.(6)  It  supplies  on  the  one 
*hand  the  want  of  delivery,  and  on  the  other  the  want  of  p-,,qp-| 
that  actual  consideration  which  always  exists  in  the  third 

and  most  usual  mode  of  alienation  of  chattels  personal,  which  is, 

• 

3.  By  sale.  It  is  in  this  last  and  most  usual  method  of  alien- 
ation that  the  contrast  presents  itself  between  the  means  to  be 
employed  for  the  alienation  of  real  property  and  chattels  personal. 
"When  a  contract  has  been  entered  into  for  the  sale  of  lands,  the 
legal  estate  in  such  lands  still  remains  vested  in  the  vendor;  and 
it  is  not  transferred  to  the  vendee  until  the  vendor  shall  have 
executed  and  delivered  to  him  a  proper  deed  of  conveyance.  In 
equity,  it  is  true,  that  the  lands  belong  to  the  purchaser  from  the 
moment  of  the  signature  of  the  contract;  and  from  the  same 
moment,  the  purchase-money  belongs,  in  equity,  to  the  vendor. (e) 
But  at  law  the  only  result  of  the  signature  of  a  contract  for  the 
sale  of  lands  is,  tliat  each  party  acquires  a  right  to  sue  the  other 
for  pecuniary  damages,  in  case  such  contract  be  not  performed. 
Not  so,  however,  the  case  of  a  contract  for  the  sale  of  chattels 

(x)  Zwinger  v.  Samuda,  7  Taunt.  265,  E.  C.  L.  R.  vol.  2  ;  Lucas  v.  Dorrien,  Ibid.  278  ; 
Biyans  v.  Nix,  4  Mee.  &  Wels.  775,  791  ;  McEwan  v.  Smith,  2  H.  of  L.  Cases,  309.  And 
see  Pearson  v.  Dawson,  1  E.  B.  &  E.  448,  E.  C.  L.  R.  vol.  96. 

(y)  Mitchell  v.  Ede,  11  Ad.  &  Ell.  888,  E.  C.  L.  R.  vol.  39  ;  and  see  stat.  18  &  19  Vict, 
c.  111. 

(z)   1  Ve.s.  Ren.  362;  1  Atk.  171. 

(«)  Plowd.  308  ;  3  Burr.  1639  ;  1  Fonb.  Eq.  342  ;  2  Fond.  Eq.  26  ;  Principles  of  the  Law 
of  Renl  Property,  118,  2d  ed.  ;  123,  3d  &  4th  eds.  ;  128,  5th  ed.  ;  134,  6th  ed. 

(A)   Carrv.  Burdis.--,  1  C,  M.  &R.  782,  788;  S.  C.  5  Tyrw.  309,  316. 

(c  Principles  of  the  Law  of  Real  Pioperty,  133,  2d  ed.  ;  137,  3d  &  4th  eds.  ;  143,  5th 
ed.  ;   150,  6th  ed. 


92  OF   CHOSES   IN    POSSESSION. 

personal.  Such  a  contract  immediately  transfers  tlie  legal  prop- 
erty in  the  goods  sold  from  the  vendor  to  the  vendee,  without 
the  necessity  of  anything  further. (r/)  In  order  to  this,  it  is  of 
course  necessary,  that  the  transaction  have  within  itself  all  the 
legal  requisites  for  a  sale ;  and  these  requisites  will  accordingly 
form,  the  next  subject  for  our  consideration. (e) 

The  requisites  for  the  sale  of  goods  partly  depend  upon  their 
value.  Goods  under  the  value  of  10^.  sterling  may  now  be  sold 
in  the  same  manner  as  goods  of  whatever  value  were  anciently 
salable;  whereas  goods  of  the  *value  of  10^.  or  upwards 
^  -■  are  now  regulated  in  their  sale  by  an  enactment  contained 
in  the  Statute  of  Frauds.  (/)'  And  first,  with  regard  to  such 
goods  and  chattels  as  do  not  fall  within  this  enactment,  there  can 
be  no  sale  without  a  tender  or  part  payment  of  the  money,  or  a 
tender  or  part  delivery  of  the  goods,  unless  the  contract  is  to  be 
completed  at  a  future  time.  "Thus  if  A.  should  agree  to  pay  so 
much  for  the  goods,  and  B.,  the  owner,  should  agree  to  take  it, 
and  the  parties  should  then  separate  without  anything  further 
passing,  this  is  no  sale.(r/)  But  if  A.  should  tender  the  money, 
or  pay  but  a  penny  of  it,  or  B.  should  tender  the  goods,  or  should 
deliver  any,  even  the  smallest  portion,  of  them  to  A.,  or  if  the 
payment  or  delivery  or  both  should  be  postponed  by  agreement 
till  a  future  day,  the  sale  will  be  valid,  and  the  property  in  the 
goods  will  pass  at  once  from  the  vendor  to  the  vendee.  (A)  If, 
however,  any  act  should  remain  to  be  done  on  the  part  of  the 
seller  previously  to  the  delivery  of  the  goods,  the  property  will 
not  pass  to  the  vendee  until  such  act  shall  have  been  done.  Thus 
if  goods,  the  weight  of  which  is  unknown,  are  sold  by  weight,(i) 

(,•/)  Com.  Dig.  tit.  Biens  (D.  3). 

(e)  In  the  recent  cases  of  Thompson  v.  Pettitt,  10  Q.  B.  101,  E.  C.  L.  R.  vol.  59  ;  and 
Flory  V.  Denny,  7  Ex.  Rep.  581,  the  property  in  goods  was  held  to  pass  by  a  mere  written 
memorandum  by  way  of  mortgage,  without  any  delivery  ;  sed  qu. 

(/)  29  Car.  II,  c.  3,  s.  17. 

{^)  2  Bla.  Com.  447 ;  Smith's  Mercantile  Law,  461,  5th  ed.  ;  488.  6th  ed. 

(A)   Shep.  Touch.  224;  Mitrtindale  v.  Smith,  1  Q.  B.  389,  395,  E.  C.  L.  R.  vol.  41. 

(I)  Hanson  v.  Meyer,  6  East,  614;  Swanwick  v.  Sothern,  9  Ad.  k  Ell.  895,  E.  C.  L.  R. 
vol.  36. 


>  '&e^j)ost,  p.  38,  note  (1). 


OF   THE    ALIENATION   OF   CHOSES    IN    POSSESSION. 


93 


or  if  a  given  weight  or  measure  is  sold  out  of  a  larger  quantity, (j) 
the  property  will  not  pass  to  the  vendee  until  the  price  shall  have 
been  ascertained  by  weighing  the  goods  in  the  one  case,  or  the 
goods  sold  shall  have  been  separated  by  weight  or  measure  in  the 
other.^     So  if  an  article  be  ordered  to  be  manufactured,  the  prop- 


el) Busk  V.  Davis,  2  Mau.  &  Selw.  397 
vol.  1. 


Shepley  v.   Davis,  5  Taunt.  617,  E.  C.  L.  R. 


1  The  title  to  goods  sold,  will  not  pass 
from  vendor  to  vendee,  without  actual  or  con- 
structive delivery  of  the  same  ;  Cutwater  v. 
Dodge,  7  Cow.  R.  85  ;  Vining  w.  Gilbretb,  .39 
Maine  R.  496  ;  Haynes  v.  Hunsicker,  26  Pa. 
St.  R.  58  ;  Samuels  v.  Grorham,  5  Cal.  R. 
226  ;  Hugus  v.  Robinson,  24  Pa.  St.  R.  9  ; 
Steelwagon  v.  Jeffries,  44  Id.  407.  What 
will  amount  to  a  constructive  delivery,  is  a 
question  of  fact  to  be  ascertained  by  evidence, 
and  certain  rules  of  law  ;  Hondlette  v.  Tall- 
man,  14  Maine  R.  400  ;  Smith  v.  Craig,  3 
Wat.  &  Serg.  R.  14  ;  Atwell  v.  Miller,  6  Md. 
R.  10  ;  Chase  v.  Ralston,  30  Pa.  St.  R.  539  ; 
Caldwell  v.  Garner,  31  Mo.  R.  131. 

As  a  general  rule,  the  goods  sold  must  be 
ascertained  and  designated,  and  for  this  pur- 
pose, where  they  form  a  part  of  a  stock,  or 
are  mixed  with  any  quantity  of  like  goods, 
they  must  be  separated  therefrom  before  the 
property  in  them  can  pass  ;  and  generally,  if 
anything  remains  to  be  done  to  goods  for  the 
purpose  of  ascertaining  their  price,  such  as 
weighing,  measuring,  or  testing  them,  the 
price  depending  upon  their  quality  or  quanti- 
ty, the  performance  of  these  acts,  would  seem 
to  be  a  condition  precedent  to  the  transfer  by 
a  sale  of  the  property  in  them,  although  the 
individual  goods  be  ascertained  ;  Hutchinson 
V.  Hunter,  7  Pa.  St.  R.  140  ;  Halet).  Huntley, 
21  Vt.  R.  50  ;  Stevens  et  al.  v.  Ewe,  10  Barb. 
S.  R.  95  ;  Dixon  v.  Myers  et  al.,  7  Gratt.  R. 
240  :  Cunningham  v.  Ashbrook,  20  Misso.  R. 
563  ;  Banchor  v.  Warren,  33  N.  H.  R.  183  ; 
Oilman  v.  Hill,  36  N.  H.  R.  311  ;  Nicholson 
V.  Taylor,  31  Pa.  St.  R.  128  ;  Chapin  v.  Pot- 
ter, 1  Hilton's  R.  366  ;  but  weighing,  meas- 
uring, or  setting  apart,  has  been  held  to  be 
essential  only  when  necessary  to  define  the 
subject-matter  of  the  contract ;  Leonard  v. 
Winslow,  2  Grant's  Cas.,  139 ;  Penna.  R. 
R.  V.  Hughes,  39  Pa.  St.  R.  521;  and  deliv- 
ery of  a  bill  of  sale  has  been  held  a  sufficient 


identification  :  Barrows  v.  Harrison,  12  Iowa 
R.  588. 

Where  goods  were  partly  measured  off,  and 
subsequently  stolen,  those  measured  were  held 
to  be  the  property  of  the  buyer,  and  the  re- 
mainder as  belonging  to  the  seller  ;  Crawford 
V.  Smith,  7  Dana's  R.  59  ;  and  the  fact  that  a 
part  of  the  price  has  been  paid,  will  not  alter 
the  circumstances,  so  as  to  make  the  contract 
complete,  provided  there  is  still  something  to 
be  ascertained  ;  Rapelye  v.  Mackie,  6  Cow. 
R.  250  ;  Joyce  v.  Adams,  4  Seld.  R.  291 ; 
even  in  a  case  where  the  vendee  has  resold 
the  goods  before  they  had  been  separated,  it 
was  held  that  the  property  had  not  passed 
from  the  original  vendor  ;  Hunter  v.  Hutch- 
inson, 7  Pa.  St.  R.  140  ;  Scudder  v.  Wor.ster, 
11  Cush.  R.  573.  Where,  however,  a  horse 
was  sold  at  a  certain  price,  or  such  other 
price  as  a  third  person  should  name,  and  the 
third  party  refused  to  name  a  price,  it  was 
held  that  the  sale  was  determined  at  the  sum 
mentioned  by  the  parties  ;  Hollingsworth  v. 
Bates,  2  Blaekf.  R.  340  ;  Moore  v.  Pierey,  1 
Jones's  L.  R.  131;  so,  too,  in  the  ease  of  a 
a  sale  of  625  bags  of  corn,  part  of  a  larger 
lot,  being  the  625  bags  which  should  first  ar- 
rive in  port,  it  was  held  that  this  was  a  suffi- 
cient separation  to  pass  the  title  to  the  625 
bags  ;  Sahlman  v.  Mills,  3  Strobh.  R.  384. 
And  a  contract  to  sell  all  the  corn  in  a  certain 
mill  house,  and  a  payment  of  part  of  the 
money,  ve.sts  the  property  in  the  buyer,  even 
though  it  was  not  measured  out  to  him  ;  Mor- 
gan V.  Perkins,  1  Jones's  L.  R.  171.  And  see 
Jordan  v.  Harris,  31  Miss.R.  257. 

Where  a  paper  manufacturer  sold  2000 
pieces  of  wall  paper,  a  part  of  a  larger  lot, 
all  of  the  same  size,  description,  and  value, 
and  the  purchaser  paid  the  price,  and  took 
away  at  the  time  1000  pieces,  it  being  agreed 
that  the  other  1000  should  remain  until 
called  for,  but  were  not  selected  by  the  buyer, 


94 


OF   CHOSES   IN    POSSESSION. 


erty  in  it  will  not  vest  in  tlic  person  who  gave  the  order,  nntil  it 
shall,  mth  his  assent,  have  been  appropriated  for  his  beneiit.(/(;j^ 

(i)   Atkinson  v.  Bell,   3  B.   &  Cress.  277,  E.  C.  L.  R.  vol.  10  ;  Wilkins  v.  Bromhead,   5 
Man.  &  Gr.  963,  973,  E.  C.  L.  R.  vol.  44. 


nor  separated  and  set  aside  for  him,  it 
■was  held  that  no  property  passed  ;  and  that, 
even  if  there  had  been  no- dlher  pieces  on 
hand  than  those  in  the  particular  lot,  and  no 
more  than  the  exact  number,  they  would 
not  have  passed  without  a  specific  act  of  ap- 
propriation, equivalent  to  a  delivery  in  con- 
teiriplalion  of  law.  But  if  the  piiper  had 
been  sold  in  a  separate  lot,  or  in  gross,  or  if 
the  pieces  had  been  separated  from  the  rest, 
and  pointed  out  to  the  buyer  as  his  2000, 
the  property  would  have  passed,  though  there 
had  been  a  small  excess  ;  Golder  w.  Ogden,  15 
Pa.  St.  R.  .')28. 

In  determining  when  the  title  to  goods 
which  are  the  object  of  a  contract,  passes, 
regard  is  of  course  to  be  had  to  the  intention 
of  the  parties,  and  if  by  anything  it  appears 
that  it  was  designed  that  the  title  should 
pass,  notwithstanding  there  was  still  some- 
thing to  be  done,  the  contract  will  be  deter- 
mined in  accordance  with  that  intention  ; 
Amber  v.  Hamlet,  12  Pick.  R.  76  ;  Leedora 
V.  Phillips,  1  Yeates's  R.  529 ;  Bowen  v. 
Burk,  13  Pa.  St.  R.  148  ;  Clemens  v.  Davis, 
7  Pa.  St.  R.  263 ;  Riddle  v.  Varnum,  20 
Pick.  R.  280  ;  Harris  v.  Smith,  3  Serg.  & 
Raw.  R.  20  ;  Denis  v.  Alexander,  3  Pa.  St. 
R.  50  :  Boswell  v.  Green,  1  Dutch  R.  390  ; 
Beller  v.  Block,  19  Ark.  R.  566  ;  Chapin  v. 
Potter,  1  Hilton's  R.  366  ;  Sewell  v.  Eaton, 
6  Wis.  R.  490  ;  Leonard  v.  Winslow,  2 
Grant's   Cas.  139. 

Even  the  converse  of  the  proposition,  that 
delivery,  actual  or  constructive,  is  necessary 
to  pass  title  where  goods  are  sold,  is  not  al- 
ways true,  for  in  the  case  of  an  actual  deliv- 
er}' of  personal  chattels  after  a  sale,  the  prop- 
erty may  not  pass,  as  when,  for  instance,  the 
delivery  has  been  conditional  ;  Andrew  v. 
Dieterick,  14  Wend.  R.  31  ;  Davis  v.  Hill,  3 
N.  H.  R.  382  ;  Young  v.  Austin,  6  Pick.  R. 
280  ;  Bennett  v.  Piatt,  9  Id.  558  ;  Lester  v. 
McDowell,  18  Pa.  St.  R.  91  ;  Cutwater  v. 
Dodge,  7  Cow.  R.  85  ;  Riddle  v.  Varnum,  20 
Pick.   R.     280;    Houdlette   v.    Tallman,    14 


Maine  R.  400  ;  Devane  v.  Fennell,  2  Ired. 
L.  R.  36  ;  Deshon  v.  Bigelow,  8  Gray's  R. 
159  ;  Henderson  v.  Lauck,  21  Pa.  St.  R.  359  j 
Sargent  V.  Metcalf,  5  Gray's  R.  306;  Flee- 
man  t-.  McKean,  25  Barb.  R.  474  ;  Herring 
V.  Hoppock,  3  Duers's  R  20  ;  Hunter  v. 
Warner,  1  Wis.  R.  141  ;  Bryant  v.  Crosby, 
36  Maine  R.  562  ;  McFarland  v.  Farmer,  42 
N.  H.  R.  386  ;  for  delivery  is  but  the  evi- 
dence of  a  transfer  of  title  ;  McCandlish  v. 
Newman,  22  Pa.  St.  R.  46.0  ;  Henderson  v. 
Lauck,  21  III.  359  ;  hence,  where  it  was  agreed 
that  the  plaintiffs  should  deliver  to  a  railroad 
a  certain  quantity  of  iron  rails,  which  should 
be  laid  in  a  designated  part  of  the  tract,  and 
upon  payment  should  become  the  property  of 
the  road,  and  the  rails  were  laid,  it  was  held 
that  they  did  not  become  the  property  of  the 
road  until  paid  for,  and  that  the  plaintiffs 
were  entitled  to  hold  them  against  subsequent 
mortgagees  of  the  road  ;  Haven  v.  Emery,  33 
N.  H.  R.  66. 

As  a  general  test  of  the  transfer  of  the  title 
of  goods  by  a  sale,  it  is  only  necessary  to  in- 
quire whether  the  vendee  can  bring  trover  or 
replevin  for  them,  or  take  them  into  his  pos- 
session, without  committing  a  trespass  ;  Les- 
ter V.  McDowell,  18  Pa.  St.  R.  91  :  McDow- 
ell V.  Hewett,  15  Johns.  R.  349  ;  Smith  v. 
Smith,  5  Pa.  St.  R.  254  ;  Leedom  v.  Phil- 
lips, 1  Yeates's  R.  629.  See  also,  generally, 
Eagle  y.  Eichelberger,  6  Wat.  R.  29;  Brewer 
V.  Smith,  3  Greenlf.  R.  44  ;  Mason  v. 
Thompson,  18  Pick.  R.  305  ;  Barnard  v. 
Poor,  21  Id.  378;  Dunlap  v.  Berry,  4  Scam. 
R.  327  ;  Frazier  v.  Hilliard,  2  Strobh.  R. 
309;  Williams  v.  Allen,  10  Hump.  R.  337; 
Lehigh  Co.  v.  Field,  8  Wat.  &  Serg.  R.  232  ; 
Macomber  t;.  Parker,  13  Pick.  R.  175;  Scott 
V.  Wells,  6  Wat.  &  Serg.  R.  357  ;  Waldo  v. 
Belcher,  11  Ired.  R.  609  ;  Sawyer  v.  Nichols, 
40  Maine  R.  21-2;  Scudder  «.  Worster,  11 
Cush.  R.  573 ;  Penna.  R.  R.  v.  Hughes,  38 
Pa.  St.  R.  521. 

1  See  ante,  note  (1),  p.  34. 


OF    THE   ALIENATION"   OF    CHOSES   IN    POSSESSION.  95 

*But  with  regard  to  goods  of  the  value  of  10^.  or  upwards,  [-^odt 
additional  requisites  have  been  enacted  by  the  seventeenth  ^  ^ 
section  of  the  Statute  of  Fr9,uds,(^)  which  provides,  "that  no  con- 
tract for  the  sale  of  any  goods,  wares,  and  merchandises  for  the 
price  of  10^.  sterling  or  upwards  shall  be  allowed  to  be  good, 
except  the  buyer  shall  accept  part  of  the  goods  so  sold,  and 
actually  receive  the  same,  or  give  something  in  earnest  to  bind 
the  bargain,  or  in  part  of  payment,  or  that  some  note  or  memo- 
randum in  writing  of  the  said  bargain  be  made  and  signed  by  the 
parties  to  he  charged  by  such  contract,  or  their  agents  thereunto 
lawfully  authorized.'"  And  by  a 'modern  statute, (m)  this  enact- 
ment "shall  extend  to  all  contracts  for  the  sale  of  goods  of  the 
value  of  10^.  sterling  and  upwards,  notwithstanding  the  goods 
may  be  intended  to  be  delivered  at  some  future  time,  or  may  not 
at  the  time  of  such  contract  be  actually  made,  procured,  or  pro- 
vided, or  fit  or  ready  for  delivery,  or  some  act  may  be  requisite 
for  the  making  or  completing  thereof,  or  rendering  the  same  fit 
for  delivery." 

The  above  section  of  the  Statute  of  Frauds  has  been  interpreted 
by  a  vast  number  of  cases  decided  on  almost  every  one  of  the 
phrases  it  contains.(?z)  The  chief  difficulty  has  been  to  determine 
the  exact  meaning  of  the  acceptance  of  part  of  the  goods  and 
actual  receipt  of  the  same,  required  on  the  part  of  the  buyer,  and 
to  ascertain  in  each  particular  case  whether  such  acceptance  and 
actual  receipt  have  taken  place  or  not.     The  acceptance  required 

{1}  29  Car.  II,  c.  3. 

(/«)  Stat.  9  Geo.  IV,  c.  14,  s.  7.  See  Hoadley  v.  McLaine,  10  Blng.  482,  486,  E.  C.  L. 
R.  vol.  25. 

(7i)   See  Smith's  Mercantile  Law,  468,  et  seq  ,  5th  ed.  ;  495,  et  seq.,  6th  ed. 


1  The    provision    of    the  English    Statute  York,  at  $50  ;   in  New  Hampshire  at  $33.33  ; 

of  Frauds,  on  this  subject,  is  in  force  in  South  in  Vermont  at  $40,  am!  in  California  at  $200, 

Carolina   and  Georgia;    Cason  v.  Cheely  et  while  in  Florida  ail  contracts  for  the  sale  of 

al.,    6  Geo.    R.   564  ;    and   in  many   of    the  personal   property,    no  matter  what  may  be 

States  of  the    Union,  analogous  laws  are  in  the  value,  must  be  in  writing.     In  Alabama, 

operation,  by  which  contracts  for  the  sale  of  Delaware,  Kentucky,   Maryland,  Missis.'-ippi, 

chattels,  beyond  a  certain  value,  are  declared  Ohio,  Pennsylvania,  and  Virginia,  the  English 

void,  unless  there  be  delivery,  or  earnest,  or  statute,  resjiecting  the  sale  of  chattels  above 

the  contract  be  in  writing ;  thus,  in  Arkan.sas,  the  value  of  10/.,  is  not  in  force  j  nor  does  it 

Maine,  and  New  Jer.«ey,  this  sum  is  fixed  at  apply  in  North  Carolina  or  Texas. 
$30 1  in  Massachusetts,  Michigan,  and  New 


96  OF   CIIOSES    IN    rOSSESSION. 

appears  not  to  be  necessarily  such  as  sliull  preclude  the  purchaser 
from  afterwards  objecting  to  the  quality  of  the  goods,(o)  and  it 
j-^  -^  may  be  prior  *to  the  receipt.]^ ;:>y  Actual  receipt  seems, 
'-  -'  according  to  a  great  preponderance  of  authority,  to  mean 
receipt  of  the  j^osscssion  of  the  goods,  and  to  be  merely  correlative 
to  delivery  of  possession  on  the  part  of  the  vendor.(5')  There 
must,  therefore,  be  an  actual  transfer  of  the  article  sold,  or  some 
part  thereof,  by  the  seller,  and  an  actual  talcing  possession  of  it 
by  the  buyer. (r)  The  possession  of  a  simple  bailee  is,  however, 
as  we  have  seen,(s)  constructively  the  possession  of  the  bailor. 
If,  therefore,  any  part  of  the  goods  be  delivered  to  an  agent  of 
the  A^endee,  or  to  a  carrier  named  by  him,  this  is  a  sufficient 
receipt  by  the  vendee  himself  ;(^)  and  if  the  goods  should  be  in  the 
possession  of  a  warehouseman  or  wharfinger  at  the  time  of  sale, 
the  receipt  by  the  purchaser  of  a  delivery  order,  provided  it  were 
coupled  with  the  assent  of  the  bailee,  would  be  a  sufficient  receipt 
of  the  goods  within  the  statute. (m)  The  wharfinger  holds  the 
goods  as  the  agent  of  the  vendor,  until  he  has  agreed  with  the 
purchaser  to  hold  for  him.  Then,  and  not  till  then,  the  wharf- 
inger is  the  agent  or  bailee  of  the  purchaser,  and  the  possession 
of  such  wharfinger  is  that  of  the  purchaser ;  and  then  only  is  there 
a  constructive  delivery  to  him. (a:-) 

The  requisitions  of  the  statute,  it  will  be  observed,  are  in  the 
alternative.     Either  the  buyer  must  accept -part  of  the  goods  sold, 

(o)  Morton  v.  Tibbett,  15  Q.  B.  428,  E.  C.  L.  R.  vol.  69  :  Bushell  v.  Wheeler,  15  Q.  B. 
442,  E.  C.  L.  R.  vol.  69  ;  sed  qu.,  and  see  Hunt  v.  Hecht,  8  Ex.  814. 

(p)  Cusack  V.  Robinson,  1  Best  &  Smith,  299,  E.  C.  L.  R.  vol.  101. 

{q)  Smith's  Mercantile  Law,  472,  n.  (g),  5th  ed.  ;  499,  n.  (»0>  6th  ed.  ;  Saunders  v. 
Topp,  4  Ex.  Rep.  390  ;  Castle  v.  Sworder,  5  H.  &  N.  281. 

(r)   Baldey  v.  Parker,  2  B.  &  Cress,  37,  41,  E.  C.  L.  R.  vol.  9. 

(5)    A  file,  p.  26. 

(t)  Dawes  r.  Peck,  8  T.  Rep.  330  ;  Hart  v.  Bush,  1  E.  B.  &  E.  494,  498,  E.  C.  L.  R.  vol. 
96.  See,  however,  Norman  v-  Phillips,  14  M.  &  W.  277  ;  Coombs  v.  Bristol  and  Exeter  Rail- 
way Company,  3  H.  &  N.  510. 

(«)  Bentall  v.  Burn,  3  B.  &  Cress.  423,  E.  C.  L.  R.  vol.  10  ;  Pearson  v.  Dawson,  1  E.  B. 
&  E.  448,  E.  C.  L.  R.  vol.  96.     See  cf?ite,  p.  35. 

{x)  Farina  r.  Home,  16  M.  &  W.  119,  123. 


1  In    Georgia  it  has  been  held    that  there  the  buyer,  that  he  will  take  the  goods,  then 

is  no  acceptance,  so  long  as  the  buyer  has  the  left  for  him   at  another   place,    at  a  future 

right  to  object  to  the  quantity   or  quality  :  day,  can  be  held  an  acceptance,  or  an  admis- 

Lloyd  t'.  Wright,  25   Geo.  R.  215.      And  in  sion  of  acceptance;  Shepherds.  Pressey,  32 

New  Hampshire,  no  promise  or  declaration  of  N.  H.  R.  49. 


OF    THE   ALIENATION   OF   CHOSES   IN    POSSESSION.  97 

and  actually  receive  the  same,  or  he  *must  give  something 
in  earnest  or  in  part  payment,  or  some  note  or  memo- 
randum in  writing  must  be  signed.  The  two  former  alternatives 
are  left  as  they  were  before  the  statute  ;  but  the  last  is  a  new  re- 
quisition, which  must  be  observed  in  the  absence  of  either  of  the 
former. (j/)  The  effect  of  the  statute,  therefore,  is  to  abolish  ten- 
der and  mere  words  as  sufficient  for  a  sale,  and  to  substitute  for 
them  the  more  exact  e\^dence  of  a  note  or  memorandum  in  \vrit- 
ing.(z)  But  as  the  memorandum  may  be  signed  by  an  agent  law- 
fully authorized,  the  bought-and-sold  notes  given  by  a  broker  are 
a  sufficient  memorandum  within  the  meaning  of  the  statute.(rt) 
And  it  is  held  that  the  entry  of  a  purchaser's  name  by  an  auc- 
tioneer's clerk  at  an  auction  is  also  sufficient  to  satisfy  the  statute, 
as  the  clerk  is,  for  that  purpose,  the  authorized  agent  of  the  pur- 
chaser. (6)  But  one  of  the  contracting  parties  to  a  sale  cannot  be 
the  agent  for  the  other  for  the  purpose  of  signing  a  memorandum 
of  the  bargain,  (c) 

If  the  agreement  is  not  to  be  performed  -^dthin  the  space  of  one 
year  from  the  making  thereof,  then,  however  small  be  the  value 
of  the  goods,  no  action  can  be  brought  upon  it,  unless  the  agree- 
ment, or  some  memorandum  or  note  thereof,  shall  be  in  writing, 
and  signed  by  the  party  to  be  charged  therewith,  or  some  other 
person  thereunto  by  him  lawfully  authorized.^  This  is  another 
provision  of  the  Statute  of  Frauds,(oi;)  and  will  hereafter  be  noticed 
more  particularly. 

Although  the  property  in  goods  sold  passes,  as  we  *have  r^^Y\ 
8een,(e)  from  the  vendor  to  the  vendee,  immediately  upon 

(y)  Lee  v.  Griffin,  1  Best  &  Smith,  272,  E.  C.  L.  K.  vol.  101. 

(z)  Every  memorandum,  letter  or  agreement  made  for  or  relating  to  the  sale  of  any  goods, 
wares  or  merchandise,  is  exempt  from  all  stamp  duty;  stat.  55  Geo.  Ill,  c.  184,  Sched., 
Part  I,  tit.  Agreement. 

(a)  Grove  v.  Aflalo,  6  B.  &  Cress,  117,   E.  C.  L.  R.  vol.  13. 

(i)   Bird  v.  Boulter,  4  B.  &  Add.  443,   E.  C.  L.  R.  vol.  24. 

(c)  Farebrother  V.  Simmons,  5  B.  <fc  Aid.  333,  E.  C.  L.  R.  vol.  7. 

{(l)  29  Car.  II,  c.  3,  s.  4. 

(e)  Ante,  p.  36. 


»  A  similar    provision  to    that  stated   in  the  States.     The  statutes  of  North  Carolina 

the  text,  and   transcribed  from  the  English  are,  however,  an  exception  to  this  rule,  and 

statute  of  Frauds  and  Perjuries,  has  been  in-  do  not  contain  this  restriction  upon  contracts, 
corporated  into  the  statute  laws  of  almost  all 

7 

t 


98  OF  cnosES  in  possession. 

the  execution  of  a  valid  contract  for  sale,  yet  the  possession  of  the 
goods  of  course  remains  with  the  vendor  until  he  delivers  them, 
which  he  is  bound  to  do  when  the  purchaser  is  ready  to  pay  the 
price//)  but  not  before.(^)  And  so  long  as  the  vendor  retains  actual 
or  constructive  possession  of  the  goods,  he  has  a  lien  upon  them 
for  so  much  of  the  purchase-money  as  may  remain  unpaid.(A)  But 
when  the  goods  are  once  delivered  by  the  vendor  out  of  his  own 
actual  or  constructive  possession,  his  lien  is  gone  ;  for  lien  in  law 
is,  as  we  have  seen,(«)  merely  a  right  to  retain  possession,  and  not 
to  recover  it  when  given  up. 
\ 

Under  certain  circumstances,  however,  the  vendor  of  goods  has 
a  right  to  resume  their  possession,  with  which  he  had  previously 
parted  under  a  contract  for  sale.  This  right  is  called  the  right  of 
stoppage  in  transitu  ;  and  it  occurs  when  goods  are  consigned  en- 
tirely or  partly(A;)  on  credit  from  one  person  to  another,  and  the 
consignee  becomes  bankrupt  or  insolvent'  before  the  goods  arrive. 

if)  Rawson  v.  Johnston,  1  East,  203. 

(§•)   Bloxatn  v.  Sanders,  4  Barn.  &  Cress.  941,  E.  C.  L.  R.  vol.  10. 

(/«)   Dixon  V.  Yates,  6  Brim.  &  Adol.  313,  E.  C.  L.  R.   vol.  27  ;  Lackington  v.  Atherton, 
7  Man.  &  G.  360,  E.  C.  L.  R.  vol.  49. 
(/)   A/ite,  p.  27. 
(k)  Hodgson  V.  Loy,   7  T.  R.  440. 

1  Three  circumstances  must  concur,  in  vent.  It  is  only  where  the  vendee  becomea 
order  that  the  vendor  of  goods  may  have  the  insolvent  after  the  sale  has  been  effected,  and 
right  of  stoppage  in  transitu.  1.  The  ven-  before  delivery,  that  the  right  of  stoppage  in 
dee  must  have  become  insolvent;  Jordan  v.  transitu  exists.  If  the  vendee  vpas  insolvent 
James,  5  Ham.  R.  88  ;  Stanton  v.  Eager,  16  at  the  time  of  the  consignment,  whether  that 
Pick.  R.  467  ;  White  v.  Welsh,  38  Pa.  St.  R.  fact  be  known  or  unknown  to  the  consignor, 
396.  2.  The  purchase-money  must  not  have  the  right  of  retaking  the  goods  does  not  ex- 
been  paid  ;  Jordan  v.  James,  5  Ham.  R.  88  ;  ist ;  Rogers  v.  Thomas,  20  Conn.  R.  53  ; 
Stanton  v.  Eager,  16  Pick.  R.  467  ;  and  3.  Buckley  v.  Furness,  15  Wend.  R.  137  ;  Nay- 
The  </Y/?A4//7(.';  of  the  goods  must  not  have  been  lor  v.  Dennie,  8  Pick.  R.  198.  But  see  Ben- 
determined,  by  a  delivery  to  the  vendee,  edict  v.  Schaettle,  12  0.  R.  (N.  S.)  515.  To 
either  actual  or  constructive ;  Newhall  v.  constitute  insolvency,  it  is  not  necessary  that 
Vingas,  1.  Shep.  R.  93  ;  Buckley  v.  Furness,  the  consignees  should  have  been  declared 
17  Wend.  R.  504;  Covell  v.  Hitchcock,  23  bankrupt,  or  taken  the  benefit  of  the  insolvent 
Wend.  R.  611,  S.  C.  20  Id.  167;  Mottram  laws  ;  any  competent  evidence  that  will  satisfy 
V  Heyer,  1  Denio's  R.  483,  S.  C.  6  Id.  629  ;  a  jury  is  sufficient  ;  Hays  v.  Mouille,  14  Pa. 
Sawyer  v.  Joslin,  20  Vt.  R.  172;  Frazier  v.  St.  R.  48.  But  there  must  be  some  visible 
Hilliard.  2  Strobh.  R.  309  ;  Donath  v.  Broom-  change  in  the  pecuniary  situation  of  the  van- 
head,  7  Pa.  St.  R.  301  ;  Lane  v.  Robinson,  18  dee,  and  some  open  notorious  act  on  his  part, 
B.  Mon.  R.  623:  White  v.  Welsh,  38  Pa.  St.  calculated  to  affect  his  credit  ;  some  change  in 
R.  396.  his  apparent  circumstances,  which  would  op- 

1st.  The  vendee  must  have  become  insol-  erate  as  a  surprise  on  the  vendor,  and  which, 


OF   THE    ALIENATION    OF   CHOSES   IN    POSSESSION. 


99 


In  tliis  event  the  consignor(^)  has  a  right  to  direct  the  captain  of 
the  ship,  or  other  carrier,  to  deliver  the  goods  to  himself  or  his 


(/)  Bird  V.  Brown,  4  Ex.  Rep.  786. 


if  he  had  linown,  he  would  not  have  given 
credit  to  the  vendee  ;  Rogers  v.  Thomas,  20 
Conn.  R.  63  ;  such  as  pecuniary  embarrass- 
ment, and  probable  inability  to  pay  his  debts, 
Secomb  v.  Nutt,  14  B.  Men.  R.  324.  The 
fact  of  the  goods  having  been  sold  on  credit, 
will  not  deprive  the  consignor  of  his  right ; 
Ilsley  V.  Stubbs,  9  Mass.  R.  65  ;  Stubbs  v. 
Lund,  7  Id.  453  ;  Newhall  v.  Vingas,  1  Shep. 
R.  93;  Atkins  y.  Colby,  20  N.  H.  R.  154; 
nor  charging  commission  for  doing  the  busi- 
ness, nor  the  acceptance  of  part  payment  ;  nor 
is  he  obliged  to  refund  the  payment  or  pay 
the  freight. 

2d.  The  purchase-money  must  not  have 
been  paid  ;  but  the  taking  of  bills  on  the 
vendee,  drawn  by  his  agent,  will  not  defeat 
the  right.  When,  however,  goods  are  pur- 
chased and  paid  for  by  the  order,  note,  or  ac- 
cepted bill  of  a  third  party,  without  the  in- 
dorsement or  guarantee  of  the  purchaser,  it 
has  been  held  ^at  the  vendor  has  no  right  of 
stoppage  iji  transitu /^d'l  Vt.  R.  58. 

3d.  The  traiisitas  of  the  goods  must  not 
have  been  determined  by  delivery  to  the  ven- 
dee, either  actual  or  constructive. 

The  question  of  delivery  is  often  difficult 
to  determine,  and  must  necessarily  depend, 
to  a  certain  extent,  upon  the  interpretation 
of  the  contract  in  each  particular  case  ;  but 
it  has  been  held,  that  the  delivery  to  the  ven- 
dee of  a  bill  of  sale,  will  defeat  the  vendor's 
right  of  stopping  the  goods  ;  Davis  v.  Brad- 
ley, 24  Vt.  R  55  ;  Ridgway  v.  Bowman,  7 
Cush.  R.  268;  and,  where  the  vendee  inter- 
cepted the  goods  on  their  passage,  before 
they  had  reached  their  ultimate  destination, 
and  took  possession  of  them,  it  was  held  that 
the  delivery  was  complete  ;  Jordan  v.  James, 
5  Ham.  R.  88 ;  Secomb  v.  Nutt,  14  B.  Mon.  R 
324  ;  on  the  other  hand,  if  the  goods  on  the 
passage  be  seized  by  a  creditor  of  the  purcha- 
ser, that  will  not  deprive  the  vendor  of  his 
right  of  stoppage  ;  Buckley  v.  Furness,  15 
Wend.  R.  137;  Wood  v.  Yeatman,  15  B. 
Mon.  R.  270  ;  Kitchen  v.  Spear,  30  Vt.  R. 
545  ;  O'Brien  v.  Norris,  16  Md  R.  122  ;  and, 
althougli  goods  may  come  to  the  hands  of  a 


carrier  of  a  purchaser,  at  a  point  intermedi- 
ate between  the  residences  of  the  vendor  and 
vendee,  that  will  not  be  considered  such  a 
delivery  to  the  vendee,  as  to  deprive  the  ven- 
dor of  his  right  ;  Buckley  v.  Furness,  15 
Wend.  R.  137  ;  Cabeen  v.  Campbell,  30  Pa. 
St.  R.  254  ;  Pottinger  v.  Hecksher,  2  Grant's 
Cas.  309.  So  of  the  possession  of  a  ware- 
houseman, at  a  point  intermediate  between 
consignor  and  consignee,  even  though  it  may 
be  mentioned  as  the  place  where  the  goods 
are  to  be  sent,  provided  it  is  not  their  ulti- 
mate destination  ;  Covell  v.  Hitchcock,  23 
Wend.  R.  611,  S.  C.  20  Id.  167  ;  Harris  v. 
Pratt,  17  N.  Y.  R.  249  ;  but  if  goods  are 
sent  to  a  forwarding  merchant,  to  await  in 
his  hands  the  instructions  of  the  purchaser 
respecting  any  further  transit,  their  transit  ia 
at  an  end  when  they  reach  his  hands  ;  Biggs 
V  Barry,  2  Curtis's  C.  C.  R.  259  ;  Guilford  v. 
Smith.  30  Vt.  R.  49  ;  Pottinger  v.  Hecksher, 
2  Grant's  Cas.  309,  and  see  also  Cartwright 
V.  Wilmerding,  24  N.  Y.  R.  621;  Hoover  v. 
Tibbits,  13  Wis.  R.  79;  even  where  the 
goods,  tranfiported  by  water,  were  in  the  port 
where  the  vendee  resided,  and  had  been  there 
attached  by  creditors,  but  had  not  yet  come 
to  the  actual  possession  of  the  vendee,  it  was 
held  that  the  right  of  stoppage  remained  ; 
Naylor  v.  Dannie,  8  Pick.  R.  198  ;  but  unless 
it  is  provided  in  the  bill  of  lading,  that  the 
consignee  shall  have  possession  at  the  conclu- 
sion of  the  voyage,  the  right  of  stoppage  is 
concluded  on  the  shipment  ;  Stubbs  t;.  Lund, 
7  Mass.  R   453. 

But  where,  before  the  delivery  of  the  goods, 
they  have  been  bona  fide  sold  by  the  origi- 
nal purchaser,  so  that  all  the  right  is  in  a 
third  person,  it  has  been  held  that  the  ven- 
dor's right  of  stoppage  is  gone  ;  thus,  a  bo?ia 
fide  assignment  by  indorsement  of  the  bill  of 
lading,  will  defeat  the  original  vendor'.s  right; 
Stanton  v.  Eager,  16  Pick.  R.  467  ;  Stubbs 
V.  Lund,  17  Mass.  R.  453  ;  Ilsley  v.  Stubbs, 
9  Id.  65  ;  The  Mary  Ann  Guast,  1  Blatch. 
R.  358;  Walton  v.  Ross,  2  Wash.  C.  C.  R. 
283;  Boyd  v.  Mosely,  2  Swan's  R.  661; 
Dows  V.    Perrin,    16  N.   Y.  R    325  ;    Lee  v. 


100  OF   CHOSES   IN   POSSESSION. 

aercnt  inptoad  of  to  the  consis-nce,  who  has  thus  become  unable  to 
pay  for  them.  The  right  of  stoppage  in  transitu  was  first  allowed 
and  enforced  only  by  the  Court  of  Chancery,  which,  in  the  exer- 
cise of  its  equitable  jurisdiction,  considered  that,  under  the  cir- 
cumstances above  mentioned,  it  was  very  allowal)le  in  equity  for 
the  consignor  to  get  his  goods  again  into  his  own  *hands.(m) 
*-  *'-'  But  the  right  w^as  subsequently  acknowledged  l)y  the  courts 
of  law ;  and  it  is  now  constantly  enlbrced  by  them.  As  this  right 
was  originally  of  equitable  origin  it  cannot  be  expected  to  depend 
on  strictly  legal  principles ;  and  the  doctrines  of  law  on  this  par- 
ticular subject  are  in  fact  unlike  its  usual  doctrines  on  other  mat- 
ters. Thus  it  is  at  variance  with  the  general  principles  of  law 
that  a  man  should  be  allowed  to  transfer  to  another  a  right  which 
he  has  not,  or  that  a  second  purchaser  should  stand  in  a  better  po- 
sition than  his  vendor  ;(w)  but  the  consignee  of  goods  may,  by  in- 
dorsing the  bill  of  lading  to  a  bona  fide  indorsee,  defeat  the  con- 
signor's right  to  stop  m  transitiL{o)  So  a  delivery  of  goods  into 
the  possession  of  a  carrier  appointed  by  the  vendee  is,  in  construc- 
tion of  law,  a  delivery  to  the  vendee  himself,  and  divests  the  ven- 

(ot)  Wiseman  v.  Vandeputt,  2  Vern.  203  ;  Snee  v.  Prescot,  2  Atk.  245. 
(w)  Dixon  V.  Yates,  5  Barn,  k  Adol.  339,  E.  C.  L.  R.  vol.  27.         ^ 
(o)  Lickbarrow  v.  Mason,  2  T.  R.  63  ;  1  H.  Bl.  457  ;  6  East,  21  ;  1  Smith's  Leading  Cases, 
388  ;  Jenkins  v.  Usborne,  7  Man.  &  Gr.  678,  699,   E.  C.  L.  R.  vol.  49. 

- 

Kimball,  45  Maine  R.  172  j  Dows  v.  Greene,  declining  to  pay  it,  the  goods  were  brought 

32  Barb.  R.  490  ;  Schumacher  v.  Eby,  24  Pa.  back  by  the  master  ;   it  was  held,  that  the 

St.  R.  521.  vendor  had  still  the  right  to  stop  the  goods. 

So,  where  goods  are  shipped  on  account,  the  traiuittis  not  being  determined  j  Allen  v. 
and  at  the  risk,  of  the  consignee,  the  bill  of  Mercier,  1  Ash.  R.  103.  The  transitns  of  the 
lading  transfers  to  him  the  legal  right  to  goods,  and  the  right  of  stoppage  in  transitu, 
the  goods,  subject  only  to  the  equitable  right  is  determined  by  delivery  to  the  vendee,  eith- 
of  the  consignor,  to  stop  thein  in  transitu,  if  er  actual  or  constructive,  or  by  circumstances 
they  are  not  paid  for,  and  the  consignee  be-  which  are  equivalent  to  such  delivery;  Do- 
comes  insolvent.  If  goods  be  once  actually  nath  v.  Broomhead,  7  Pa.  St.  R.  301.  Where 
delivered  to  a  servant  or  correspondent  of  the  goods  sold,  to  be  paid  for  on  delivery,  were 
vendee,  authorized  by  him  to  receive  them,  put  on  board  a  vessel  appointed  by  the  ven- 
the  right  of  the  vendor  to  stop  them,  in  the  dee,  hot  to  be  transported  to  him,  or  deliv- 
event  of  the  insolvency  of  the  vendee,  is  ered  for  his  use  at  a  place  of  his  appointment, 
gone  ;  Bolin  v.  Huffnagle,  1  Raw.  R.  9  ;  Biggs  but  to  be  shipped  by  such  vessel  in  his  name, 
V.  Barry,  2  Curtis's  C.  C.  R.  259  ;  Cabeen  v.  from  his  place  of  residence  and  business  to  a 
Campbell,  30  Pa.  St.  R.  254.  third  person,  it  was  held,  there  was  no  right 

Where  the  vendor  shipped    the  goods    on  of  stoppage  in  transitu  after  the  goods  were 

board  of  a  packet  vessel,  the  master  of  which  embarked;  Rowley   r.  Bigelow,  12  Pick.  R. 

refused  to  deliver  them,  on  bis  arrival,  to  the  307  ;  and  see,  also,   Stubbs  v.  Lund,  7  Mass. 

vendee,  until   he  was  paid  a  balance  due  to  R.  453,  HoUingsworth  r.  Napier,  3  Gaines's 

him  for  antecedent  freights  ;  and  the  vendee  R.  182. 


OF   THE    ALIENATION   OF    CHOSES   IN    POSSESSION.  101 

dor's  lien  for  the  unpaid  purchase-money  ;(p)  but  until  the  iransitus 
is  completely  ended,  or  the  goods  come  to  the  actual  possession  of 
the  vendee,  the  vendor's  right  to  stop  them  in  transitu  may  still 
be  exercised  in  the  event  of  the  bankruptcy  or  insolvency  of  the 
vendee,(<7)  unless  indeed  such  right  be  defeated,  as  we  have  said, 
by  a  bona  fide  indorsement  of  the  bill  of  lading.  Thus,  although 
by  the  sale  of  the  goods  the  property  in  them,  involving  the  risk 
of  their  loss,  passes  to  the  purchaser,  and  although  the  possession 
of  them  be  delivered  to  a  carrier  named  by  him,  still  such  posses- 
sion may  be  resumed  by  the  vendor  during  the  journey,  in  the 
event  of  the  bankruptcy  or  insolvency  of  the  vendee.  As  this 
right  is  a  departure  from  legal  principles  *on  the  vendor's  p^j^q-i 
behalf,  it  is  allowed  only  in  one  of  the  two  cases  of  bank- 
ruptcy or  insolvency,  by  which  latter  term  appears  to  be  here  meant 
a  general  inability  to  pay,  evidenced  by  stopping  of  payment,  (r) 
When  possession  of  goods  has  been  resumed  by  the  vendor  under 
his  right  of  stoppage  in  transitu,  he  is  restored  to  the  lien  for  the 
unpaid  purchase-money  which  he  had  before  he  parted  with  such 
possession ;  but  according  to  the  better  opinion,  the  contract  for 
'sale  is  not  thereby  rescinded.(sy 

(p)  Dawes  v.  Peck,  8  T.  R.  R.  330  ;  ante,  p.  39  ;  Wilmhurst  v.  Bowker,  in  error,  7  Man. 
A  Gr.  882,    E.  C.  L.  R.  vol.  47. 

(q)  Hoist  V.  Pownq,!,  1  Esp.  240  ;  Northey  v.  Field,  2  Esp.  613  ;  Jackson  v.  Nichol,  5  New 
Cases,  508,  519,  E.  C.  L.  R.  vol.  35.  See  Van  Casteel  v.  Booker,  2  Ex.  Rep.  691 ;  Heinekey 
V.  Earle,  8  E.   &  B.  410,  E.  C.  L.  R.  vol.  92. 

(r)  See  Smith's  Merc.  Law,  525,  n.  {b),  5th  ed.  ;  554,  n.  6th  ed.  The  case  of  Wilmshurst 
V.  Bowker,  5  New  Cas.  541,  E.  C.  L.  R.  vol.  35;  7  Scott,  561,  E.  C.  L.  R.  vol.  81  ;  2  Man. 
&  G.  812,  E.  C.  L.  R.  vol.  40  ;  was  reversed  in  error,  7  Man.  &  Gr.  882  ;  E.  C.  L.  R. 
vol.  49. 

(s)  Bloxam  v.  Sanders,  4  Barn.  &  Cress.  949,  E.  C  L.  R.  vol.  10  ;  1  Smith's  Leading 
Cases,  432. 

1  See  also  Wilm.shurst  v.  Bowker,  5  Bing.  ruptcy  of  the  vendee,  and  afterwards  resold 
N.  C.  541  (35  Eng.  Com.  Law  Rep.  218).  It  them.  The  court  held  that  the  plaintiffs  could 
appears  never  to  have  been  expre.ssly  decided  not  maintain  trover,  without  payment  or  ten- 
ia England,  whether  the  effect  of  stoppage  t'w  der  of  the  price,  but  that  if  the  vendor  resold 
transitu,  is  entirely  to  rescind  the  contract,  the  hops  wrongfully,  they  might  bring  a  spe- 
or  only  to  replace  the  vendor  in  the  same  cial  action  for  the  injury  sustained  by  such 
position  as  if  he  had  not  parted  with  the  pos-  wrongful  sale,  and  recover  damages  to  the 
Bession,  and  entitle  him  to  hold  the  goods  un-  extent  of  that  injury  ;  and  the  same  reasoning 
til  the  price  be  paid  down  ;  Clay  v.  Harrison,  was  held  in  Wilm.'fhurst  v.  Bowker,  which  was 
10  B.  k  C.  106;  Wentworth  v.  Outhwaite,  10  also  an  action  of  trover,  in  which  a  similar 
M.  &  W.  452.  In  Bloxam  v.  Saunders,  10  decision  was  given.  The  following  American 
Eng.  Com.  Law  Rep.  477,  the  defendants  re-  authorities  support  the  doctrine  taken  in  the 
fused  to  deliver  hops,  on  account  of  the  bank-  text,  and  decide  that  this  right  of  stoppage  in 


102  OF    CHOSES   IN    POSSESSION. 

There  is  one  case  in  which  the  property  in  goods  passes  from 
one  person  to  another  hy  payment  of  their  vahie  without  any  ac- 
tual sale.  In  an  action  of  trover(i)  the  plaintiff  is  entitled  to 
damages  equal  to  the  value  of  the  property  he  has  lost,  but  not 
furtlier,  unless  he  has  sustained  any  special  damage.(«)  The  de- 
fendant, therefore,  having  paid  the  amount  of  the  damages,  is 
entitled  to  retain  the  goods  in  respect  of  which  the  action  is 
brought;  and  the  property  in  them  vests  in  him  accordingly. (x)* 

The  alienation  of  personal  chattels  is  prohibited  to  be  made  by 

certain  persons  for  certain  objects.     And  first  with  respect  to 

persons.     An  alien  or  foreigner  is  under  great  restrictions  as  to 

the  acquirement  of  real  estate ;(?/)  but  with  respect  to  personal 

chattels  he  stands  on  the  same  footing  as  a  natural-born  subject; 

r^.A-y   for   by  *the  recent  act   to  amend  the  laws  relating   to 
1*44 1  . 

•-      -■    aliens, (2)  it  is  enacted(a)  that  from  and  after  the  passmg 

of  this  act,  any  alien,  being  the  subject  of  a  friendly  state,  shall 

and  may  take  and  hold  by  purchase,  gift,  bequest,  representation 

or  otherwise,  every  species  of  personal  property,  except  chattels 

real,  as  fully  and  effectually  to  all  intents  and  purposes,  and  with 

the  same  rights,  remedies,  exemptions,  privileges  and  capacities, 

as  if  he  were  a  natural-born  subject  of  the  United  Kingdom. 

The  gift  of  an  infant  or  person  under  the  age  of  twenty-one  years 

is  voidable, (^)  and  that  of  an  idiot  or  lunatic  appears  to  be  abso- 

(0    See  artte,  p.  23. 

(«)   Bodley  v.  Reynolds,  8  Q.  B.  779,  E.  C.  L.  R.  vol.  55. 

{X)  Cooper  v.  Shepherd,  3  C.  B.  266,  275.  E.  C.  L.  R.  vol.  54.  See  Buckland  v.  Johnson, 
C.  P.  18  Jur.  775  ;  15  C.  B.  115,  E.  C.  L.  R.  vol.  80. 

(y)  See  Principles  of  the  Law  of  Real  Property,  56,  2d  ed.  :  58,  3d  &4thed3.;  61,  5th 
&  6th  eds. 

(z)  Stat.  7  &  8  Vict.  c.  66,  explained  by  stat.  10  &  11  Vict.  c.  83. 

(o)  Sect.  4. 

{b)  Bac.  Abr.  tit.  Infancy,  Age  (I),  3. 


transitu,  does  not  proceed  on  the  ground  of  the  title  to  personal   chattels,  for  it  may  be 

rescinding  the  contract,  but  on  the  ground  of  brought  wherever  one  claims  personal  prop- 

an  equitable  lien  ;   the  contract  remains  in  erty  in  the  possession  of  another.     See  Mor- 

force,  at  least  to  such  an  e.xtent  that  the  ven-  ris  on  the  Law  of  Replevin,  p.  37,  Ac,  where 

dee  may  still  have  the  goods  by  paying  the  the  cases  are  collected. 

price  of  them  ;   Jordan  v.  James,  5  Ham.  R.  For  the  statutes  of  Pennsylvania  and  other 

88;   Rowley  v.   Bigelow,    12   Pick.   R.    307;  States,  on  the  subject  of  Replevin,  see  Morris 

Newhall  v.  Vargas,  3  Shep.  R.  314.  on  the  Law  of  Replevin,  Appx. 
•  The  action  of  replevin  will  also  determine 


OF    THE    ALIENATION    OF   CHOSES    IN    POSSESSION.  103 

lately  void  :(c)  in  this  respect  the  law  of  personal  chattels  is  now 
the  same  as  that  of  real  estate.(^/)  Married  women  are  also  in- 
capable of  making  any  disposition  of  personal  chattels,  except 
such  as  may  be  settled  in  equity  in  trust  for  their  own  separate 
use;  for  marriage  is  an  absolute  gift  in  law  of  all  the  wife's  choses 
in  possession  to  her  husband,  as  well  as  those  she  is  possessed  of 
at  the  time  of  the  marriage,  as  those  which  come  to  her  during 
her  coverture. (e)^  Persons  convicted  of  treason  or  felony  forfeit 
on  such  conviction  the  whole  of  their  goods  and  chattels  to  the 
crown;  and  nothing  but  a  bona  fide  alienation  for  a  valuable  con- 
sideration, made  previously  to  conviction,  can  avert  such  for- 
feiture.(/)  When  a  felony  is  not  capital,  the  punishment  en- 
dured has  the  effect  of  a  pardon  ;{g)  but  the  restoration  to  civil 
rights  does  not  take  effect  till  the  determination  of  the  period  of 
punishment.  All  personal  property,  therefore,  which  accrues 
to  a  felon  during  his  transportation  *is  forfeited  to  the  p^  ..-, 
crown  ;(A)  but  a  mere  contingent  interest  will  not  be  for-    '-       ^ 

(c)  Ibid.  tit.  Idiots  and  Lunatics  (F). 

{d)  See  Principles  of  the  Law  of  Real  Property,  57,  2d  ed.  ;  59,  3d  &  4th  eds.  ;  62,  5th 
ed.  ;  63,  6th  ed. 

(e)  Co.  Litt.  300  a;  1  Rop.  Husb.  and  Wife,  169.  See  post,  the  chapter  on  Husband  and 
Wife. 

(/)  3  Rep.  82  b;  4  Bla.  Com.  387,  388;  Perkins  v.  Bradley,  1  Hare,  219;  Chowne  v. 
Baylis,  31  Beav.  351. 

(g)  Stat.  9  Geo.  IV,  c.  32,  s.  3. 

(h)  Roberts  v.  Walker,  1  Russ.  &  M.  752. 

1  By  an  act  of  the  legislature  of  Pennsyl-  A  similar  provision  is  found  in  the  statute 

vania,   passed  April  11,  1848,   all  property,  law    of    Massachusetts:    Gen.    Stats.    Mass. 

whether  real  or  personal,  owned  by  or  belong-  (1860),  p.  537. 

ing  to  any  married  woman,  shall  be  owned,  In  California,  the  property  of  the  wife,  ac- 

used  and  enjoyed  by  her  as  her  own  separate  quired  before  the  marriage,  and  all  such  as 

property,    freed    from    any  liability   for  the  shall  be  acquired  by  her  after  coverture,  by 

debts   of  her  husband;  Purd.    Dig.    (1861),  gift,  bequest,  devise  or  descent,  may  become 

p.  699.  her  separate  property,  by  a  full  and  complete 

The   statutes  of  the   State   of  New  York  inventory  thereof  being  made,  and  acknow- 

contain  the  following  provision,  3  Revis.  Stat,  ledged  and  proved  in  the  manner  required  by 

of  N.  Y.,   Banks  k  Bro.'s  fifth  ed.,    p.  239  :  law  for  a  conveyance  of  land  ;   but  property 

"The    real    and    personal    property   of    any  acquired   in   any   other  manner  than   above 

female,  who  may  hereafter  marry,  and  which  specified,  during  coverture,  by  the  wife,  shall 

she  shall  own   at  the  time  of  marriage,  and  be  the  common  property  of  husband  and  wife. 

the   rents,   issues,   and  profits  thereof,    shall  But  in  all  cases  the  husband  shall  have  the 

not  be  subject  to  the  disposal  of  her  husband,  management  of  his  wife's  estate,  during  the 

nor  be  liable  for  his  debts,  and  shall  continue  coverture,  unless  he  shall  be  guilty  of  wast- 

her  sole  and  separate  property,  as  if  she  were  ing  or  squandering  it ;   Act  of  1 7  Ai)ril,  1850  ; 

a  single  female."  Wood's  Cal.  Dig.  (1800),  p.  487. 


104  OF   CHOSES   IN    POSSESSION. 

feited,  if  it  do  not  vest  until  the  expiration  of  the  period  of  ban- 
ishment. (/) 

With  regard  to  the  objects  for  which  the  alienation  of  chattels 
personal  is  prohibited,  gifts  to  charitable  pui'poses  are  not  re- 
stricted, neither  are  corporations  excepted  objects,  as  in  the  case 
of  landed  property. (^•)^  But  by  a  statute  of  the  reign  of  Eliza- 
beth,(/)  the  gift  or  alienation  of  any  lands,  tenements,  heredita- 
ments, goods  and  chattels,  made  for  the  purpose  of  delaying,  hin- 
dering or  defrauding  creditors,  is  rendered  void  as  against  them, 
unless  made  upon  good,  which  here  means  valuable,  consideration 
and  bona  Jide^  to  any  person  not  having  at  the  time  of  such  gift 
any  notice  of  such  fraud.  There  are  also  more  stringent  pro- 
visions to  the  same  effect  contained  in  the  bankrupt  laws,  to 
which  reference  will  be  hereafter  made  in  the  chapter  on  bank- 
ruptcy. The  fraudulent  purpose  intended  by  the  statute  of  Eliza- 
beth can  of  course  only  be  judged  of  by  circumstances.  Thus 
it  has  been  held  that  if  the  owner  of  goods  make  an  absolute  as- 
signment of  them  by  deed  to  one  of  his  creditors,  and  yet  remain 
in  the  possession  of  the  goods,  such  remaining  in  possession  is 
a  badge  of  fraud,  which  renders  the  assignment  void,  by  virtue 
of  the  statute,  as  against  the  other  creditors. (w^)  But  if  the  as- 
signment be  made  to  secure  the  payment  of  money  at  a  future 
day,  with  a  proviso  that  the  debtor  shall  remain  in  possession  of 
the  goods  until  he  shall  make  default  in  payment,  the  possession 
of  the  debtor,  being  then  consistent  with  the  terms  of  the  deed,  is 
r*df\i  ^^^  ^regarded  in  modern  times  as  rendering  the  transac- 
-•   tion   fraudulent   within   the   meaning   of  the    statute,  (w) 

(/)  Stokes  V.  Holden,  1  Keen,  145  ;  Thompson's  Trusts,  22  Beav.  506. 

(/.)  See  Principles  of  the  Law  of  Real  Property,  58,  2d  ed.  ;  60,  61,  3d  &  4th  eds.  ;  64, 
65,  5th  ed.  ;  69,  6th  ed. 

(/)  Stat.  13  Eliz.  c.  5. 

(m)  Twyne's  Case,  2  Kep.  80  b  ;  1  Smith's  Leading  Cases,  1 ;  Edwards  v.  Harben,  2  T. 
Rep.  587. 

(w)  Edwards  v.  Harben,  2  T.  Rep.  587 ;  Martindale  v.  Booth,  3  Barn.  &  Adol.  498  ;  Reed 
V.  Wilmot,  7  Bing.  577. 

1  By  an  act  of  the  legislature  of  the  State  before  the  decease  of  the  testator  or  .alienor, 
of  Pennsylvania,  passed  April  26,  1855,  no  And  such  dispositions  of  property,  must  con- 
bequest,  devise,  or  conveyance  for  religious  form  in  other  respects  with  the  provisions  and 
or  charitable  uses,  shall  be  valid  unless  done  restrictions  of  the  said  act ;  Purd.Dig.  (1861), 
by  will  or  deed  at  least  one  calendar  month  p.  146,  sec.  6. 


OF   THE   ALIENATION   OF   CHOSES   IN    POSSESSION. 


105 


Such  a  transaction  is  in  fact  a  mortgage  of  the  goods,  analogous 
to  a  mortgage  of  lands,  (o)^     The  pro]3erty  in  the  goods  passes  at 

(o)  See  Principles  of  the  Law  of  Real  Property,  332,  2d  ed.  ;  349,  4th  ed.  ;  360,  5th  ed.  ; 
382,  6th  ed. 


1  It  is  a  generally  established  rule,  that, 
as  regards  third  persons,  there  cannot  be  a 
sale  or  mortgage  of  personal  property,  with- 
out a  transfer  of  the  possession ;  Water's 
Exrs.  V.  McClellan  et  al.,  4  Dal.  R.  208, 
note  {a).  But  this  rule  is  subject  to  many 
exceptions ;  thus,  in  several  of  the  States 
there  may  be  a  mortgage  of  personalty,  with- 
out a  notorious  and  visible  change  of  posses- 
sion ;  Whitney  v.  Lowell,  33  Maine  R.  318  j 
Thayer  v.  Stark,  6  Gush.  R.  11  ;  Whitney  v. 
Heywood,  Id.  82  ;  Skiflfu.  Solace,  23  Vt.  R. 
279  ;  Prior  v.  White,  12  111.  R.  261  ;  Rugg  i;. 
Barnes,  2  Cush.  R.  591 ;  Ballume  v.  Wallace, 
2  Rich.  R.  80  ;  Smith  v.  Turcher,  9  Ala.  R. 
208 ;  Smith  v.  Acker,  23  Wend.  R.  653  :  Cole  v. 
White,  26  Id*  511  ;  Hall  v.  Carnley,  2  Duer's 
R.  99;  Gay  v.  Bidwell,  7  Michi.  R.  519; 
Morrow  v.  Turney,  35  Ala.  R.  131 ;  Hackett 
V.  Manlove,  14  Cal.  R.  85  ;  Crosswell  v.  Allis, 
25  Conn.  R.  301  ;  the  mortgage  must,  how- 
ever, be  recorded,  in  order  to  render  it 
valid  as  regards  third  parties ;  Witham 
V.  Butterfield,  6  Cush.  R.  217;  Brigham  y. 
Weaver,  Id.  298;  Stowell  v.  Goodale,  Id. 
452;  Bishop  v.  Cook,  13  Barb.  S.  R.  326; 
Frost  V.  Willard,  9  Barb.  S.  R.  440  ;  Wilson 
V  Leslie,  20  0.  R.  161;  Browne.  Webb,  Id. 
389;  Cook  v.  Thayer,  11  111.  R.  617;  Travis 
V.  Bishop,  13  Mete.  R.  304;  Shapleigh  v. 
Wentworth,  Id.  358;  Vaughn  v.  Bell,  9  B. 
Mon.  R.  447;  Burditt  v.  Hunt,  25  Maine  R. 
419  ;  Appleton  v.  Bancroft,  10  Mete.  R.  231  ; 
Camp  V.  Camp,  2  Hill's  R.  628 ;  Fadden  v. 
Turner,  3  Jones's  L.  R.  481 ;  Barfield  v.  Cole, 
4  Sneed's  R.  465  ;  Call  v.  Gray,  37  N.  H.  R. 
428 ;  but,  as  between  the  parties  themselves, 
it  has  been  held,  that  the  mortgage  would  be 
good  without  being  recorded,  or  without  a 
transfer  of  the  possession  ;  Smith  v.  Moore, 
1 1  N.  II.  R.  55 ;  Winsor  v.  McLellan,  2  Story's 
R.  492 1  Hall  V.  Snowhill,  2  Green's  R.  8  ; 
Merrick  v.  Avery,  14  Ark.  R.  370;  Wescott 
V.  Gunn,  4  Duer's  R.  107;  Johnson  v.  Jef- 
fries, 30  Miss.  R.  423  ;  Fuller  v.  Paige,  26 
HI.  R.  358. 

But  a  mortgage  of  chattels  executed  in  the 
State  of  New  York,  and  valid   by  the  laws 


of  that  State  without  a  change  of  posses- 
sion, will  not  protect  the  property  from  at- 
tachment in  the  State  of  Massachusetts,  by 
creditors  of  the  mortgagor,  if  found  there 
in  the  possession  of  the  mortgagor,  though 
brought  there  by  him  for  a  temporary  pur- 
pose ;  Wentworth  v.  Leonard,  4  Cush.  R.  414. 
And  see  to  the  same  principle,  Blystone  v. 
Burgett,  10  Ind.  R.  28  ;  Bowman  v.  McKleroy, 
14  La.  An.  R.  587. 

To  some  extent  the  rnortgage  of  personal 
property  seems  subject  to  the  rules  governing 
the  mortgage  of  real  estate  ;  thus,  it  m.ay  be 
sold  on  execution  against  the  mortgagor,  and 
the  purchaser  will  take  it  subject  to  the  mort- 
gage ;  Bank  of  Lansingburgh  v.  Crary,  1 
Barb.  S.  R.  542  ;  or  the  mortgagee  will  have 
the  right  to  recover  possession  of  the  mort- 
gaged property  from  any  person  holding  un 
der  him  through  such  sale  ;  Mercer  v.  Tinsley, 
14  B.  Mon.  R.  273.  Again,  a  mortgage  of 
personalty  is  good,  and  will  have  effect  against 
any  other  title  inferior  to  it,  except  a  sale  or 
mortgage  of  the  same  goods  from  the  same 
person,  previously  recorded  ;  Youngblood  v. 
Keadle,  1  Strobh.  R.  121. 

A  mortgage  of  personal  property  to  secure 
future  advances,  as  well  as  an  existing  debt,  • 
has  been  held  valid  for  the  sum  due  at  the 
time  the  mortgagees  assert  their  title  ;  Fair- 
banks V.  Bloomfield,  5  Duer's  R.  434.  And 
see  also  23  How.  U.  S.  R.  14;  Googins  v. 
Gilraore,  47  Maine  R.  9  ;  McClelland  i).  Rem- 
sen,  36  Barb.  R.  622. 

In  Florida,  there  must  be  a  delivery  within 
twenty  days,  in  order  to  render  the  mortgage 
valid ;  Sanders  v.  Pepoon,  4  Fla.  R.  465. 

In  Pennsylvania,  the  old  rule  seems  gene- 
rally to  prevail,  but  in  the  case  of  a  lease,  the 
le.q.oee  mny  mortgage  improvements  made  upon 
the  property  dur^ig  the  term,  to  his  lessor, 
without  delivery  thereof,  and  such  a  mort- 
gage will  be  good  ;  for,  to  quote  the  words  of 
Judge  Kennedy,  "  In  order  to  render  a  mort- 
gage or  sale  of  personal  property  valid,  as 
against  the  creditors  of  the  mortgagor  or  ven- 
dor, it  is  true,  in  general,  that  a  correspond- 
ing change  of  possession  thereof  must  aocom 


106  OF    CIIOSES    IN    POSSESSION. 

law  by  the  deed  to  the  mortgagee, (7))  whilst  the  possession  of 
them  rightly  remains  with  the  mortgagor.  The  mortgagee,  there- 
fore, cannot  maintain  an  action  of  trover  for  the  goods  against  a 
stranger,  until  default  has  been  made  by  the  mortgagor  in  pay- 
ment of  the  money  secured. (^)  In  this  respect  a  mortgage  of 
goods  differs  from  a  mere  pledge,  in  which  the  property  in  the 
goods  remains  with  the  pledgor,  and  the  pledgee  obtains  posses- 
sion only,  the  right  to  retain  which  constitutes  his  lien  for  the 
money  he  has  advanced, (r)  and  enables  him  to  maintain  an  action 
of  trover. (s)  The  chief  disadvantage  in  the  mortgage  of  goods 
is,  that,  as  the  goods  continue  in  the  possession  of  the  mortgagor 
as  reputed  owner,  they  will  by  virtue  of  provisions  in  one  of  the 
bankrupt  acts  become  liable,  in  the  event  of  his  bankruptcy,  to 
be  sold  for  the  benefit  of  his  creditors  generally.(/)     By  a  recent 

sale  of  personal  chat- 
-e  power  to  take  pos- 
session of  any  effects  therein  comprised,  or  a  true  copy  thereof, 
must  be  filed  in  the  office  of  the  Court  of  Queen's  Bench  within 


r*i'-~i    ^^^  ^^  *Parliament(?/)  every  bill  of  s 
tels,  whereby  the  grantee  shall  have 


(/;)  Gale  v.  Burnell,  7  Q.  B.  850. 

(q)  Bradley  v.  Copley,  1  C.  B.  685;  Brierley  v.  Kendall,  17  Q.  B.  937.  If  the  mortgagor 
should  retain  possession  after  default  in  payment  at  the  time  specified,  it  may  possibly  be 
doubted  whether  the  security  would  not  then  be  void  as  against  creditors  under  the  statute 
of  Elizabeth,  for  by  the  terras  of  the  deed,  the  mortgagor  is  only  to  enjoy  possession  witil 
default.  But  the  better  opinion  is  that  the  deed  will  still  be  good.  See  2  Davidson's  Pre- 
cedents, 609,  2d  ed.;  Ex.  parte  Sparrow,  2  De  G.,  M.  &  G.  907. 

(r)  Ante,  p.  27. 

(s)  Legg  V.  Evans,  6  Mee.  &  Wells.  36. 

(0  Ryall  V.  Rolle,  1  Atk.  165,  170  ;  S.  C.  nom.  Ryall  v.  Rowles,  1  Ves.  Sen.  348  ;  stat.  6 
Geo.  IV,  c.  16,  s.  72,  repealed  and  re-enacted  by  stat.  12  &  13  Vict.  c.  106,  s.  125  ;  Fre.shney 
V.  Carrick,  1  II.  &  N.  653  ;  Spackman  v.  Miller,  12  C.  B.  N.  S.  659  ;  Hornsby  v.  Miller,  1 
Ell.  &  Ell.  192. 

(u)  Stat.  17  &  18  Vict.  c.  36. 

pany  the  same.  But  if  such  change  of  pos-  See  also  on  the  subject  of  mortgage  of 
session  be  impracticable,  it  must  be  dispensed  chattels,  Beaumont  v.  Yeatman,  8  Hump, 
with,  for  the  law  never  requires  that  which  is  R.  542;  Provost  v.  Wilcox,  17  0.  R.  359; 
impossible  ;"  for  that  possession  of  the  thing  Jewett  v.  Preston,  27  Maine  R.  400  ;  Fergu- 
pledged,  which  its  nature  and  the  circum-  son  i".  Thomas,  26  Id.  499  ;  Hubby  t;.  Hubby, 
stances  will  admit  of,  is  the  kind  of  possession  5  Cush.  R.  515  ;  Weld  v.  Cutler,  2  Gray's  R. 
only  which  the  law  deman(^  ;  Fry  v.  Miller,  195;  McTaggart  v.  Rose,  14  Ind.  R.  230; 
45  Pa.  St.  R.  441.  By  an  act  of  the  Legisla-  Gregg  v.  Sanford,  24  III.  R.  17;  State  v. 
ture  of  that  State,  passed  April  5,  1853,  Pamp.  D'Oench,  31  Misso.  R.  433. 
L.  295,  it  is  provided,  that  the  lessees  of  coal  As  to  the  necessity  of  a  transfer  of  posses- 
mines  in  Schuylkill  County,  "  may  mortgage  sion  in  the  case  of  a  levy  and  execution  upon 
their  interests  in  such  rights,  or  property  de-  personal  property,  see  Levy  v.  Wallis,  4 
mised,  together  with  all  machinery  and  fix-  Dal.  R.  167,  note  (a). 
tures  appurtenant  or  belonging  thereto." 


OF   THE    ALIENATION"   OF    CHOSES   IN    POSSESSION.  107 

twenty-one  days;  otherwise  such  bill  of  sale  is  rendered  void,  so 
far  as  regards  any  of  the  goods  in  the  apparent  possession  of  the 
grantor,  both  as  against  the  assignees  of  the  grantor,  in  case  of 
his  bankruptcy,  or  under  any  assignment  for  the  benefit  of  his 
creditors,  and  also  as  against  all  sheriff's  officers  and  other  per- 
sons seizing  the  eifects  in  execution  of  any  process  of  any  court 
of  law  or  equity  issued  against  the  goods  of  the  grantor.  Such 
bills  of  sale  before  the  act,  were  valid  as  against  an  execution 
creditor,  though  void  as  against  assignees  under  the  bankruptcy 
of  the  grantor;  and  the  act  does  not  appear  to  give  to  such  bills 
of  sale  as  are  filed  under  it  any  greater  validity  than  they  had  be- 
fore.(y)  But  if  the  bill  of  sale  be  not  filed,  the  goods  may  now 
be  taken  in  execution,  which  they  could  not  have  been  before 
the  act.  The  act  does  not  apply  to  fixtures,  when  they  pass  by  a 
conveyance  of  the  premises  to  which  they  are  affixed. (2:)  And 
as  seizure  of  the  goods  of  a  trader  under  an  execution  for  an 
amount  exceeding  fifty  pounds  has  now  been  made  an  act  of 
bankruptcy, (^)  a  bill  of  sale  of  the  goods  of  a  trader,  whether 
filed  or  not,  now  afifords  a  very  unsatisfactory  security. 

Choses  in  possession  have  long  been  liable  to  involuntary 
alienation  for  the  payment  of  the  debts  of  their  owner.  On 
the  decease  of  any  person,  his  personal  property  generally  has 
always  been  liable,  in  the  first  place,  to  the  payment  of  his  debts 
of  every  kind,  and  if  a  *creditor  take  proceedings  against 
his  debtor  in  the  debtor's  lifetime,  a  sale  of  his  goods  and  ^  -■ 
chattels  may  be  procured  by  a  writ  of  Jieri  facias  (Ji.  fa.)  issued  in 
execution  of  the  Judgment  of  the  court.  This  writ  is  of  very  an- 
cient date,  and  is  usually  said  to  be  given  by  the  common  law; 
though  some  suppose  that  its  name  arose  from  the  wording  of 
the  Statute  of  Edward  I,(z)  by  which  the  writ  of  elegit  was  pro- 
vided.(«)  The  writ  directs  the  sheriff  to  cause  the  debt  to  be 
realized  out  of  the  goods  and  chattels  of  the  debtor,  quod  fieri 

(v)  Stansfeld  v.  Cubitt,  2  De  G.  A  Jones,  222;  Badger  v.  Shaw,  Q.  B.,  8  W.  R.  210;  6 
Jur.  N.  S.  377. 

{z)  Mather  v.  Frasar.  2  Kiiy  &  J.  536  ;  Waterfall  v.  Pennistone,  6  E.  &  B.  876.  The  bill 
of  sale  rau.st  be  duly  stamped  before  it  can  be  registered.     Stat.  24  &  25  Vict.  c.  91,  s.  34. 

(y)  Stat.  24  &  25  Vict.  c.  134,  s.  73. 

(z)  Stat.  13  Edw.  I,  c.  18,  called  the  Statute  of  Westmin-ster  the  Second.  See  Principles 
of  the  Law  of  Real  Property,  63,  2d  ed.  ;  G6,  3d  &  4th  eds.  ;   71,  5th  ed.  ;  75,  6lh  ed. 

(a)  Bac.  Abr.  tit.  Execution  (C). 


108  OF   CHOSES   IN    POSSESSION. 

facias  de  bonis  et  catallis,  &c. ;  and  a  sale  of  the  goods  is  made  by 
the  sheriff  accordingly.  This  sale  is  now  directed  to  be  made  by 
public  auction  in  all  cases  where  the  debt  or  damages  recovered 
exceeds  fifty  pounds,  unless  the  Court  of  Bankruptcy  shall  other- 
wise direct. (6)  And  the  seizure  of  the  goods  of  a  trader  is  now 
an  act  of  bankruptcy  whenever  the  debt  or  damages  recovered 
exceed  fifty  pounds. (c)  Goods,  however,  are  not,  like  lands,  af- 
fected by  the  mere  entry  of  a  judgment  of  a  court  of  law  against 
the  owner.  The  debtor  was  always  allowed  to  alienate  his  goods 
until  the  writ  of  execution  was  issued;  although  by  a  fiction  of 
law,  all  judicial  proceedings,  wa'its  of  execution  included,  for- 
merly related  back  to  the  first  day  of  the  term  to  which  they  be- 
longed. ((/)  Goods,  therefore,  which  had  been  sold  after  the  first 
day  of  a  term,  might  yet  practically  have  been  seized  under  a 
writ  of  ^.  fa.  relating  back  to  that  day,  but  subsequently  issued. 
To  remedy  this  evil,  it  was  enacted  by  one  of  the  sections  of  the 
r*j.Qn  St^t^^^^  of  Fraud8,(e)  that  no  writ  oi  fieri  facias  *or  other 
"-'  writ  of  execution  shall  bind  the  property  of  the  goods 
against  which  it  is  used,  but  from  the  time  that  such  writ  shall  be 
delivered  to  the  sherift",  under-sheriff,  or  coroner,  to  be  executed; 
and  the  officer  is  required,  upon  receipt  of  the  writ,  to  indorse  on 
it  (without  fee)  the  day  of  the  month  and  year  on  wdiich  he 
received  it.  Goods  and  chattels  might  therefore  be  safely  alien- 
ated, although  judgment  might  exist  against  the  owner,  provided 
a  writ  of  execution  were  not  actually  in  the  hands  of  the  sheriff. 
And  a  recent  statute  now  provides  that  no  writ  of  execution  shall 
prejudice  the  title  to  goods  acquired  by  any  person  bona  fide,  and 
for  a  valuable  consideration,  before  the  actual  seizure  thereof  b}' 
virtue  of  such  writ;  pro^dded  such  person  had  not,  at  the  time 
when  he  acquired  such  title,  notice  that  such  writ,  or  any  other 
writ  under  w^hich  the  goods  might  be  seized,  had  been  delivered 
to  the  oflicer  and  remained  unexecuted  in  his  hand8.(/)  It  has 
been  decided  that  an  alienation  to  secure  or  satisfy  another 
creditor  is  not  void  within  the  above-mentioned  statute  of  the  13 

(i)  Stat.  24  &  25  Vict.  c.    134,  s.   74.     This  section  was  perhaps  intended  to  applj   to 
traders  only,  but  its  wording  is  general. 

(c)  Sec.  73. 

(d)  Com.  Dig.  tit.  Execution  (D  2) ;  Anon.  2  Vent.  218.    See  2  Sudg.  Vend.  &  Pur.  9th  ed. 
198. 

{e)  Stat.  29  Car.  II,  c.  3,  s.  16. 
(/)  Stat.  19  &  20  Vict.  c.  97,  s.  1. 


OF   THE    ALIENATION   OF   CHOSES   IN   POSSESSION.  109 

Elizabeth,(^)  althougli  made  with  the  intention  of  defeating  an 
expected  execution  of  the  judgment  creditor.(/?)  Besides  the  sale 
of  goods  under  the  writ  of  fieri  facias  there  might  also  be  a  writ  of 
levari  facias,  now  disused,  by  which  the  sheriff  levied  the  corn  and 
other  present  profit  which  grew  on  the  lands,  together  with  the 
rents  then  due,  and  the  cattle  thereon, (?')  And  by  the  writ  of 
elegit,  the  goods  of  the  debtor  are  delivered  to  his  creditor  at  an 
appraised  value,  together  with  possession  of  his  lands.  (/>:)  It  has, 
however,  been  enacted,  that  the  *wearing  apparel  and  bed-  p^r  a-i 
ding  of  any  judgment  debtor  or  his  family,  and  the  tools  '-  -' 
and  implements  of  his  trade  (not  exceeding  in  the  whole  the 
value  of  five  pounds),  shall  not  be  liable  to  seizure  under  any 
execution  or  order  of  any  court  against  his  goods  and  chattels.(^)^ 
And  the  Common  Law  Procedure  Act,  1860,  now  provides,  that 
where  goods  or  chattels  have  been  seized  in  execution  by  a 

{g)  Stat.  13  Eliz.  c.  5. 

(h)  Wood  V.  Dixie,  7  Q.  B.  892,  E.  C.  L.  R.  vol.  53  ;  Hale  v.  Saloon  Omnibus  Company, 
4  Drew.  492. 

(j)  2  Wms.  Saunders,  68  a,  n.  (1) . 

(/,)  Pullen  V.  Purbecke,  1  Ld.  Raym.  346.  See  the  present  forms  of  this  writ  of  fi.  fa.,  9 
Ado).  A  Ell.  986  et  seg.,  E.  C.  L.  R.  vol.  36,  New  Cases,  366  et  seq.,  E.  C.  L.  R.  vol.  35. 

(/)  Stat.  8&9  Vict.  c.  127,  s.  8. 


1  Provisions  analogous  to  that   stated   in  "  In  lieu  of  the  property  now  exempt  by  law 

the    text,    and    more   or   less    liberal  to   the  from  levy  and  sale  on  execution,  issued  upon 

debtor,  are  in  force  in  almost  all  the  States  any  judgment   obtained  upon  contract,    and 

of  the  Union  ;  N.  H.  Compiled  Slats.  (1853),  distress   for    rent,    property  to   the  value  of 

p.  469,  sec.  2  ;  Thompson  s  Dig   Ls.  of  Fla.,  three  hundred  dollars,  exclusive  of  all  wear- 

p.  356,  sec.  3  ;  3  Revis.  Stats,  of  N.  Y.  645  ;  ing  apparel  of  the  defendant  and  his  family, 

Revis.    Stats,    of    Vt.    (1839),    p.    240,    sec.  and  all  Bibles  and  school-books  in  use  in  the 

13;  2  Compiled  Ls.  Michi.  (1857),  p.  1211  ;  family    (which    shall    remain    exempted    as 

Code  of  Ala.  (1852),  p.  453,  sec.  2462;   Gen.  heretofore),    and  no  more,    owned   by  or  in 

Stats.  Mass.  (1860),  p.  68,  sec.  32;  Nix.  Dig.  possession   of  any   debtor,    shall    be   exempt 

(3d  ed.),  N.  J.,  p.  269,  sec.  13  ;  Revis.  Code  from  levy  and  sale  on   execution,  or  by  dis- 

of  N.   C.    (1855),    p.   276,   sec.    8;    1    Revis.  tress  for  rent."     Purd.  Dig.    (1861),  p.  432, 

Stats.  Ky.  (1860),  p.  495.    See  sec.  1,  6  Stats,  sec.  20. 

of  S.  C,  pp.  213,  214;   Caruth.  and  Nichol.        By  the  Constitution  of  the  State  of  Michi- 

Stat.  Ls.  of  Tenn.,  p.  533,  and  Ls.  of  Tenn.  gan,    it   is   provided,   Art.  xvi,   sec.   1,  that 

Supplt.    (1846),   pp.   230,   231 1    Ls.   of  Del.,  "  the  personal  property  of  every  resident  of 

Revis.  Code,  1852,  pp.  393,  394  ;  Dig.  of  the  this  State,  to  consist  of  such  property  only 

Stats,  of  Ark.,  pp.  496,  497;  Revis.  Stats.  0.  as  shall  be  designated   by  law,  shall   be  ex- 

(1800),  p.  1143,  sec.  1 ;  How  &  Hutch.  Stat,  empted  to  the  amount  of  not  loss  than  five 

Ls.  of  Missi.,  p.  634,  sec.  18.  hundred  dollars,  from  sale  on  execution,  or 

In    Pennsylvania,    the    exemption   law    is  other   final    process   of  any  court;"   Ac.     1 

somewhat  peculiar,  it  being  enacted  by  the  Comp.  Ls.  Michi.  (1857),  72. 
act  of  the  9th'  of  April,  1849,   sec.   1,  that. 


110  OF    CHOSES   IN    POSSESSION. 

sheriff  or  other  officer  under  process  of  the  superior  courts  of 
comuion  Uiw,  and  some  third  person  claims  to  he  entitled  under 
a  bill  of  sale  or  otherwise  to  such  goods  or  chattels  by  way  of 
security  for  a  debt,  the  court  or  a  judge  may  order  a  sale  of  the 
whole  or  part  thereof,  upon  such  terms  as  to  paj'ment  of  the 
whole  or  part  of  the  secured  debt  or  otherwise  as  they  or  he 
shall  think  fit,  and  may  direct  the  application  of  the  proceeds  of 
such  sale  in  such  manner  and  upon  such  terms  as  to  such  court 
or  judge  may  seem  just.fwi.) 

Glioses  in  possession  are  also  liable  to  involuntary  alienation  on 
the  bankruptcy  of  their  owner.  In  this  event  all  the  personal 
estate  of  the  bankrupt,  wheresoever  the  same  may  be  found  or 
known,  vests  at  once,  first  in  the  official  assignee  and  then  in  the 
creditors'  assignees  under  the  bankruptcy  by  virtue  of  their  ap- 
pointment. (/?.)  And  in  order  to  prevent  traders  from  obtaining 
false  credit  from  the  possession  of  property  which  is  not  their  own, 
it  is  provided,(o)  that  if  any  bankrupt  at  the  time  he  becomes 
bankrupt  shall,  by  the  consent  and  permission  of  the  true  owner 
r*  r  1 1  thereof,  *have  in  his  possession ,  ordei\  or  disposition,  any  goods 
^  -'  or  chattels,  whereof  he  was  reputed  owner,  or  whereof  he 
had  taken  upon  him  the  sale,  alteration,  or  disposition  as  owner, 
the  Court  of  Bankruptcy  shall  have  power  to  order  the  same  to 
be  sold  and  disposed  of  for  the  benefit  of  the  creditors  under  the 
bankruptcy.  But  it  has  been  held,  that  until  an  order  for  the 
sale  of  such  goods  has  been  made  by  the  coiirt,  no  property  in 
them  is  vested  in  the  assignees  ;(^)  and  the  order  ought  to  specify 
the  particular  goods  which  are  to  be  sold. (5-)  The  above  provision 
appears  now  to  extend  to  all  persons,  whether  traders  or  not.(r) 

(m)  Stat.  2.3  &,  24  Vict.  c.  126.  s.  13. 

{71.)  Stat.  24  &  25  Vict.  c.  134,  ss.  108,  117.     See  post,  the  chapter  on  bankruptcy. 

(o)  Stats.  6  Geo.  IV,  c.  16,  s.  72  ;  1  &  2  Will.  IV,  c.  od,  s.  7  ;  5  &  6  Vict.  c.  122,  s.  59  et 
teg.,  repealed  and  consolidated  by  stat.  12  &  13  Vict.  c.  106,  s.  125  ;  Hamilton  v.  Bell,  10 
Ex.  Rep.  545 ;  18  Jur.  1109 ;  Reynolds  v.  Hall,  4  H.  &  N.  519  ;  Holderness  v.  Rankin,  2  De 
Gex,  F.  A  J.  258. 

(p)  Heslop  V.  Baker,  6  Ex.  Rep.  740  ;  15  Jur.  684.  See  Ex  parte  Heslop,  1  De  G.,  M. 
&  G.  477  ;  Ex  parte  Wood,  4  De  Gex,  M.  &  G.  861  ;  Ex  parte  Young,  4  De  Gex,  M.  <t  G. 
864. 

(q)  Quartermaine  L'.  Bittleston,  13  C.  B.  133,  E.  C.  L.  R.  vol.  76. 

(r)  Stat.  24  &  25  Vict.  c.  134,  s.  232. 


OF    SHIPS.  •  111 


^CHAPTER   IV.       •  [*52] 

OF    SHIPS. 

There  is  one  important  class  of  choses  in  possession  which  the 
poUcy  of  the  law  has  rendered  subject  to  peculiar  rules,  namely, 
ships  and  vessels.  The  whole  of  the  acts  relating  to  Merchant 
Shipping  were  repealed  by  the  Merchant  Shipping  Repeal  Act, 
1854,(a)  and  the  law  on  this  subject  is  now  contained  in  the  Mer- 
chant Shipping  Act,  1854,(6)  as  amended  by  the  Merchant  Ship- 
ping Act  Amendment  Acts,  1855((?)  and  1862.{d)  Every  British 
ship,  with  a  few  unimportant  exceptions,  is  required  to  be  regis- 
tered,(e)  and  no  ship  is  to  be  deemed  a  British  ship  unless  she 
belongs  wholly  to  natural  born  British  subjects,  or  to  persons 
made  denizens  or  duly  naturalized.  But  no  natural  born  subject 
who  has  taken  the  oath  of  allegiance  to  any  foreign  state  can  be 
owner,  unless  he  has  subsequently  taken  the  oath  of  allegiance  to 
her  majesty,  and  continues  during  his  ownership  resident  within 
her  majesty's  dominions,  or,  if  not  so  resident,  member  of  a  British 
fiictory,  or  partner  in  a  house  actually  carrying  on  business  within 
her  majesty's  dominions.  And  every  denizen  and  naturalized 
person  must  continue  during  his  ownership  resident  within  her 
majesty's  dominions,  or  if  not  so  resident,  must  be  a  member  of 
a  British  factory,  or  partner  in  such  a  house  of  business  as  above 
mentioned.  But  bodies  corporate  established  under  and  subject 
to  the  laws  of  the  United  Kingdom  or  any  British  possession,  and 
having  their  principal  place  of  *busine88  therein,  may  be 
owners.(/)  The  registration  is  made  by  the  collector,  comp-  •-  '^  -^ 
troller,  or  other  principal  officer  of  customs  for  the  time  being  at 
any  port  or  other  place  in  the  United  Kingdom  approved  by  the 

(a)  Stat.  17  &  18  Vict.  c.  120.  {d)  Stat.  25  A,  26  Viet.  c.  63. 

(A)  Slat.  17  A  18  Vict.  c.  104.  («)   Stat.  17  A  18  Vict.  c.  104,  s.  19. 

(c)  Stat.  18  A  19  Vict.  c.  91.  (/)  Sect.  18. 


112  OF    CHOSES   IN   POSSESSION. 

commissioners  of  customs  for  the  registry  of  ships,  and  by  other 
officers  in  the  colonies  and  possessions  abroad. (^) 

The  property  in  every  ship  is  divided  into  sixty-four  shares ; 
and,  subject  to  the  provisions  of  the  act  with  respect  to  joint 
owners  by  transmission,  not  more  than  thirty-two  individuals  shall 
be  entitled  to  be^registered  at  the  same  time  as  o■s^^lers  of  any 
one  ship  ;  but  this  rule  is  not  to  affect  the  beneficial  title  of  any 
number  of  persons,  or  of  any  company,  represented  by  or  claim- 
ing under  any  registered  owner  or  joint  owner.^  And  no  person 
is  entitled  to  be  registered  as  owner  of  any  fractional  part  of  a 
share  in  a  ship ;  but  any  number  of  persons  not  exceeding  five 
may  be  registered  as  joint  owners  of  a  ship,  or  of  a  share  or 
shares  therein.  And  joint  owners  are  to  be  considered  as  consti- 
tuting one  person  only,  as  regards  the  foregoing  rule  relating  to 
the  number  of  persons  entitled  to  be  registered  as  owners,  and 
shall  not  be  entitled  to  dispose  in  severalty  of  any  interest  in  any 
ship,  or  in  any  share  or  shares  therein,  in  respect  of  which  they 
are  registered.  A  body  corporate  may  be  registered  as  owner  by 
its  corporate  name.(A)  No  notice  of  any  trust,  express,  implied, 
or  constructive,  shall  be  eptered  in  the  register  book  or  receivable 
by  the  registrar  ;  and,  subject  to  any  rights  and  powers  appearing 
by  the  register  book  to  be  vested  in  any  other  party,  the  registered 
owner  of  any  ship,  or  share  therein,  shall  have  power  absolutely  to 
dispose  of  such  ship  or  share  in  the  manner  prescribed  by  the 
act,  and  to  give  effectual  receipts  for  any  money  paid  or  advanced 
-.  by  way  of  consideration. (z)  But  the  intention  of  the  *act 
L  -"is  that,  without  prejudice  to  the  provisions  contained  in 
the  act  for  preventing  notice  of  trusts  from  being  entered  on  the 
register,  and  without  prejudice  to  the  powers  of  disposition  and 
of  giving  receipts,  conferred  by  the  act  on  registered  owners  and 
mortgagees,  and  without  prejudice  to  the  pro^^sions  contained  in 
the  act  relating  to  the  exclusion  of  unqualified  persons  from  the 
ownership  of  British  ships,  equities  may  be  enforced  against 
owners  and  mortgagees  of  ships  in  respect  of  their  interest  therein, 

(§•)    Sect.  30.  (h)  Sect.  37.  {i)  Sect.  43. 


1  There  are  no  provisions  in  the  registry    number  of  owner?,    or  regulating  the  frac- 
laws   of  the  United    States,    restricting   the    tional  parts  of  their  ownership. 


OF    SHIPS.  113 

in  the  same  manner  as  equities  may  be  enforced  against  them 
in  respect  of  any  other  personal  property.(/t)  Upon  the  comple- 
tion of  the  registry  of  any  ship,  the  registrar  gives  a  certificate  of 
registry  in  the  form  prescribed  by  the  act.  And  whenever  any 
change  takes  place  in  the  registered  ownership  of  any  ship,  then 
if  such  change  occurs  when  the  sliip  is  at  her  port  of  registry,  a 
memorandum  of  such  change  is  forthwith  indorsed  by  the  regis- 
trar on  the  certificate  of  registry.  But  if  the  ship  is  absent  from 
her  port  of  registry,  then,  upon  her  first  return  to  such  port,  the 
master  must  dehver  the  certificate  of  registry  to  the  registrar, 
and  he  is  to  indorse  thereon  a  like  memorandum  of  the  change. 
Or  if  she  previously  arrives  at  any  port  where  there  is  a  British 
registrar,  such  registrar  shall,  upon  being  advised  by  the  registrar 
of  her  port  of  registry  of  the  change  having  taken  place,  indorse 
a  like  memorandum  thereof  on  the  certificate  of  registry,  and 
may  for  that  purpose  require  the  certificate  to  be  delivered  to  him, 
so  that  the  ship  be  not  thereby  detained.(?)  Provision  is  also  made 
for  the  granting  of  a  new  certificate  in  the  place  of  any  which 
may  be  delivered  up,  or  may  be  mislaid,  lost  or  destroyed. (w) 
The  certificate  of  registry  is  to  be  used  only  for  the  *navi-  ,-^^--1 
gation  of  the  ship,  and  is  kept  in  the  custody  of  the  mas-  ^  -' 
ter,  and  is  not  subject  to  detention  by  reason  of  any  title,  lien, 
charge,  or  interest  whatsoever  which  any  owner,  mortgagee  or 
other  person  may  have  or  claim  to  have  in  the  ship  described  in 
such  certificate. (??,)^ 

A  registered  ship  or  any  share  therein,  when  disposed  of  to 
persons  qualified  to  be  owners  of  British  ships,  must  be  trans- 
ferred by  bill  of  sale,  and  such  bill  of  sale  must  contain  such  a 
description  of  the  ship  as  is  contained  in  the  surveyor's  certificate, 
or  such  other  description  as  may  be  sufficient  to  identify  the  ship 
to  the  satisfaction  of  the  registrar,  and  must  be  according  to  the 
form  set  out  in  the  schedule  to  the  act,  or  as  near  thereto  as  cir- 
cumstances permit,  and  must  be  executed  by  the  transferror  fti  the 
presence  of  and  be  attested  by  one  or  more  witnesses.(o)     And  in 

(/r)  Stat.  25  &  26  Viot.  c.  63,  s.  3.     See  Ward  v.  Beck,  C.  P.  9  Jur.  N.  S.  912. 
(/)  Sect.  45.  (w)   Sect.  50. 

{m)  Sect!.  47,  48,  53.  (o)   Sect.  55. 

^  For  the  laws  of  the  United  States,  on  Brightley's  Dig.  of  the  Ls.  of  the  U.  S.,  p. 
the   subject  of  certificates   of  registry,   see    826,  et  seq. 

8 


114  OF    ClIOSES   IN    POSSESSION. 

case  any  bill  of  sale,  mortgage  or  other  instrument  for  the  disposal 
or  transfer  of  any  ship,  or  any  share  or  interest  therein,  is  made 
in  any  form  or  contains  any  particulars  other  than  the  form  and 
particulars  prescribed  and  approved  for  the  purpose  by  or  in  pur- 
suance of  the  Merchant  Sliipping  Act,  1854,  no  registrar  sliallbe 
required  to  record  the  same  without  the  express  direction  of  the 
commissioners  of  her  majesty's  customs.(p)  And  no  individual 
can  be  registered  as  transferree  of  a  ship,  or  of  any  share  therein, 
until  he  has  made  a  declaration  in  a  prescribed  form,  stating  his 
qualification  to  be  registered  as  owner  of  a  share  in  a  British 
ship.  And  if  a  body  corporate  be  transferee,  the  secretary  or 
other  duly  appointed  public  officer  of  such  body  corporate  must 
make  a  similar  declaration. (^)  The  bill  of  sale,  together  with 
the  required  declaration,  must  then  be  produced  to  the  registrar 
*of  the  port  at  which  the  ship  is  registered,  who  thereupon 
*-  -^  enters  in  the  register  the  name  of  the  transferree  as  owner 
of  the  ship  or  share  comprised  in  the  bill  of  sale,  and  also  in- 
dorses on  the  bill  of  sale  the  fact  of  such  entry  having  been  made, 
with  the  date  and  hour  thereof.  All  bills  of  sale  are  entered  in  the 
register  book  in  the  order  of  their  production  to  the  registrar. (r)^ 

All  mortgages  of  any  ship,  or  share  therein,  are  to  be  in  a  form 
prescribed  by  the  act,  or  as  near  thereto  as  circumstances  permit; 
and  on  the  production  of  such  instrument,  the  registrar  of  the 

{p)   Stat.  18  &  19  Vict.  c.  91,  s.  11.  (r)   Sect.  57. 

(fj)  Stat.  17  &  18  Vict.  c.  104,  s.  56. 

1  "Our  Registry  Act  requires,  that  upon  further  declares,  that  in  case  she  is  not  so 
every  transfer  of  a  registered  ship,  in  whole  registered  anew,  she  shall  not  be  entitled  to 
or  in  part,  to  any  other  citizen,  there  shall  the  privileges  and  benefits  of  a  ship  of  the 
be  some  instrument  of  writing  in  the  nature  United  States.  Act  of  1792,  ch.  45,  ^  14. 
of  a  bill  of  sale,  which  shall  recite  at  length  The  consequence  of  the  non -registry  is,  that 
the  certificate  of  registry  ;  otherwise,  the  ship  the  ship  becomes  a  foreign  ship."  Abbott  on 
shall  be  incapable  of  being  registered  anew.  Shipping,  by  Story,  p.  9(5,  n.  2. 
Act  of  1792,  ch.  45,  ^  14.  But  the  act  doe.?  The  intention  of  the  act  of  March  2,  18.31, 
not  ii'^alidate  any  contract  of  conveyance  on  the  subject  of  enrolled  and  licensed  ves- 
made  between  the  parties,  unless  the  certifi-  sels,  was  to  enable  such  vessels  in  certain 
cate  is  recited,  but  leaves  such  contract  to  be  cases,  to  engage  in  foreign  and  domestic  corn- 
decided  upon,  according  to  the  general  prin-  merce  at  one  and  the  same  time,  without  the 
ciples  of  the  common  law  ;  Wendover  v.  formality  of  a  registry,  not  exacting  the  re- 
Hogeboom,  7  John.  R.  308;  Hatch  t".  Smith,  strictions,  nor  enforcing  the  penalties  imposed 
5  Mass.  R.  42  ;  Weston  v.  Penniman,  1  Mason  on  registered  vessels.  The  Forrester,  INewb. 
R.  306.  But  our  act  requires  every  ship  to  Adm.  R.  81. 
be  registered  anew  upon  every  transfer ;  and 


OF    SHIPS.  115 

port  at  which  the  ship  is  registered  is  to  record  the  same  in  the 
register  book.(.s)  Every  such  mortgage  is  to  be  recorded  by  the 
registrar  in  the  order  of  time  in  which  the  same  is  produced  to 
him  for  that  purpose,  and  the  registrar  shall  by  memorandum 
under  his  hand  notify  on  the  instrument  of  mortgage  that  .the 
same  has  been  recorded  by  him,  stating  the  day  and  hour  of  such 
record.(^)  If  there  is  more  than  one  mortgage  registered,  the 
mortgagees  are  entitled  to  priority  one  over  the  other  according 
to  the  date  at  which  each  instrument  is  recorded  in  the  register 
book,  and  not  according  to  the  date  of  each  instrument  itself, 
notwithstanding  any  express,  implied  or  constructive  notice. (i«) 
No  mortgagee  is  to  be  deemed  by  reason  of  his  mortgage  to  be 
the  owner  of  a  ship,  or  of  any  share  therein,  nor  is  the  mortgagor 
to  be  deemed  to  have  ceased  to  be  owner,  except  in  so  far  as  may 
be  necessary  for  making  such  ship  or  share  available  as  a  security 
for  the  mortgage  debt.(.c)  Every  registered  mortgagee  is  to  have 
poAver  absolutely  to  dispose  of  the  ship  or  share  in  respect  of 
which  he  is  registered,  and  to  give  *eifectual  receipts  for  r-^rn-, 
the  purchase-money ;  but  if  more  persons  than  one  are  ^  -' 
registered  as  mortgagees  of  the  same  ship  or  share,  no  subsequent 
mortgagee  shall,  except  under  the  order  of  some  court  capable  of 
taking  cognizance  of  such  matters,  sell  such  ship  or  share  with- 
out the  concurrence  of  every  prior  mortgagee. (y)  Mortgages  of 
ships  are  not  to  be  afiected  by  the  bankruptcy  of  the  mortgagor; (2) 
and  a  form  is  provided  for  the  transfer  of  mortgages. («)  And 
whenever  any  registered  mortgage  shall  have  been  discharged, 
the  registrar,  on  production  of  the  mortgage-deed  with  a  receipt 
for  the  mortgage-money  indorsed  thereon,  duly  signed  and  at- 
tested, makes  an  entry  of  the  discharge  of  such  mortgage  in  the 
register  book;  and  upon  such  entry  being  made,  the  estate,  if 
any,  which  passed  to  the  mortgagee,  vests  in  the  same  persons  in 
whom  the  same  would  (having  regard  to  intervening  acts  and  cir- 

(«)  Sect.  6(5.  (w)   Sect.  69. 

(<)  Sect.  67. 

{x)  Sect.  70.  See  European  Co.  v.  Royal  Mail  Co.,  4  K.  <fe  J.  676  ;  Dickinson  v.  Kitchen, 
8  E.  <t  B.  780,  E.  C.  L.  R.  vol.  92  ,  Marriott  v.  The  Anchor  Rever.sionary  Company,  lim- 
ited, 2  Giff.   457. 

(y)   Sect.  71.  (a)  Sect.   73. 

(z)  Sect.  72. 


116  OF    CHOSES    IN    POSSESSION. 

cumstances,  if  any)  have  vested  if  no  such  mortgage  had  ever 
been  made;(6)' 

Provision  is  made  enabling  any  registered  owner  to  empower 
any  other  person  or  persons  to  sell  any  entire  ship,  or  to  mortgage 
any  ship  or  any  share  therein,  at  any  place  out  of  the  country  or 
possession  in  which  the  port  of  registry  of  the  ship  is  situate. 
For  this  purpose  what  are  called  certificates  of  sale  or  mortgage 
are  granted  by  the  registrar  on  certain  conditions  mentioned  in 
the  act,  and  in  forms  set  out  in  the  schedule  thereto. (c)  The 
above  are  the  principal  provisions  of  the  act  so  far  as  relates  to 
the  conveyance  of  ships.  For  more  particular  information  the 
reader  must  be  referred  to  the  acts  themselves,  which  are  of  great 
length. .    It  may,  however,  be  added,  that  all  instruments  used  in 

(h)  Sect.  68. 

(c)   Sects.  76  et  seq.     See  Orr  v.  Dickinson,  1  John.  1. 

1  A  recent  act  of  Congress  has  provided  ting  in  said  booii  or  books,  and   also  on  the 

for  the  recording  of  any  mortgage  or  convey-  bill  of  sale,  mortgage,   hypothecation  or  con- 

ance  of  a  vessel.     It  is  entitled  "An  act  to  veyance, the  time  when  the  same  was  received, 

provide   for    recording    the    conveyances    of  and  shall  certify  on  the  bill  of  sale,  mortgage, 

vessels,  and  for  other  purposes,"  passed  the  hypothecation  or  conveyance,  or  certificate  of 

29lh    July,    1850.     The  incidental    effects  of  discharge  or  cancellation,  the  number  of  the 

this  act  upon  mortgages  and  conveyances  of  book  and   page   where   recorded  ;    and   shall 

vessels  will  be  found  to  be  very  extensive.  receive,  for  so  recording  such  instrument  of 

Sec.   1.   "That  no  bill  of  sale,  mortgage,  conveyance,  or  certificate   of  discharge,  fifty 

hypothecation,  or  conveyance  of  any  vessel,  cents. 

or  part  of  any  vessel,  of  the  United  States,  Sec.  3.  "  Aiid  be  it  further  enacted,  That 
shall  be  valid  against  any  person  other  than  the  collectors  of  the  customs  shall  keep  an 
the  grantor  or  mortgagor,  his  heirs  and  devi-  index  of  such  records,  inserting  alphabetical- 
sees,  and  persons  having  actual  notice  thereof ;  ly  the  names  of  the  vendor  or  mortgagor, 
unless  such  bill  of  sale,  mortgage,  hypothe-  and  of  the  vendee  or  mortgagee,  and  shall 
cation  or  conveyance,  be  recorded  in  the  permit  said  index  and  books  of  record  to  be 
office  of  the  collector  of  the  customs  where  inspected  during  office  hours, under  such  reas- 
such  vessel  is  registered  or  enrolled.  Provi-  onable  regulations  as  they  may  establish,  and 
ded,  That  the  lien  by  bottomry  on  any  vessel,  shall,  when  required,  furnish  to  any  person,  a 
created  during  her  voyage,  by  a  loan  of  money  certificate,  setting  forth  the  names  of  the 
or  materials,  necessary  to  repair  or  enable  owners  of  any  vessel  registered  or  enrolled, 
such  vessel  to  prosecute  a  voyage,  shall  not  the  parts  or  proportions  owned  by  each  (if 
lose  its  priority,  or  be  in  any  way  affected  by  inserted  in  the  register  or  enrolment),  and 
the  provisions  of  this  act.  also  the  material  facts  of  any  existing  bill  of 

Sec.  2.   "■'  And  be  it  further  eiiarted,  That  sale,  mortgage,    hypothecation,   or  other  in- 

the  collectors  of  the  customs  shall  record  all  cumbrance  upon  such  vessel,  recorded  since 

such  bills  of  sale,  mortgages,  hypothecations  the  issuing  of  the  last  register  or  enrolment, 

or  conveyances,  and  also,  all  certificates  for  viz.,  the  date,  amount  of  such  incumbrance, 

discharging  and  cancelling  any  such  convey-  and  from  and  to  whom,  or  in  whose  favor 

ance,  in  a  book  or  books  to  be  kept  for  that  made;  the  collector  shall  receive  for  each  such 

purpose,  in  the  order  of  their  reception  ;  no-  certificate,  one  dollar." 


OF   SHIPS. 


117 


carrying  into  eiFect  that  part  of  the  act  which  relates  to 
*British  ships,  their  ownership  and  registry,  are  exempt  '-       ^ 
from  stamp  diity.{d) 

The  Admiralty  Court  Act,  1861, (e)  confers  on  the  High  Court 
of  Admiralty  jurisdiction  to  decide  all  questions  arising  between 
the  co-owners,  or  any  of  them,  touching  the  ownership,  possession, 
employment  and  earnings  of  any  ship  registered  in  any  port  in 
England  or  Wales,  or  any  share  thereof;  and  it  empowers  that 
court  to  settle  all  accounts  outstanding  and  unsettled  between 
the  parties  in  relation  thereto,  and  to  direct  the  ship  or  any  share 
thereof  to  be  sold,  and  to  make  such  order  in  the  premises  as  to 
the  court  shall  seem  fit,(/)i     The  same  act  also  gives  the  Court 


(d)  Sect.  9. 

(c)  Stat.  24  Vict.  c.  10. 


(f)  Sect.  8. 


1  Previously,  however,  to  the  above  act  of 
Parliament,  the  English  Court  of  Admiralty, 
without,  however,  otherwise  disclaiming  this 
authority,  declined  to  exercise  it,  inasmuch 
as  it  had  been  asserted  by  the  Court  of 
King's  Bench,  in  the  reign  of  George  II, 
that  the  Court  of  Admiralty  had  no  authority 
to  compel  a  sale,  in  any  case  of  disagreement 
between  part  owners. 

In  this  country  this  power  has  been  assert- 
ed, and  in  two  reported  cases  at  least,  has 
been  exercised  by  the  courts.  Jn  the  early 
case  of  Skinner  v.  the  Sloop  Hope,  Bee's 
Adm.  R.  2,  in  the  District  Court  ofthe  United 
States  for  the  District  of  South  Carolina, 
Judge  Bee  decreed  a  sale,  on  the  petition  of 
the  owner  of  one  moiety,  against  the  owner  of 
the  other  moiety  of  the  vessel.  And  in  the 
case  of  Davis  Brooks  v.  the  Brig  Seneca, 
Gilps.  R.  10,  where  the  owners  were  equally 
divided  in  opinion,  each  wishing  to  employ 
the  brig  upon  a  distinct  voyage,  the  learned 
Judge  of  the  District  Court  of  the  United 
States  for  the  Eastern  District  of  Pennsylva- 
nia, having,  in  an  elaborate  opinion,  decided 
against  the  jurisdiction,  his  judgment  was 
reversed  by  Justice  Washington,  on  appeal  to 
the  Circuit  Court.  1  Conkl.  U.  S.  Admiral- 
ty, p.  .324. 

But  it  has  been  held  that  the  United  States 
courtB  sitting  in  admiralty,  have  no  power  to 


decree  the  sale  of  a  ship  to  satisfy  a  mort- 
gage ;  Bogart  v.  Steamboat  John  Jay,  17 
How.  U.  S.  R.  399. 

In  order  to  avoid  disputes  between  the  dif- 
ferent owners  of  a  ship  or  other  vessel,  on  the 
subject  of  her  management,  it  frequently  hap- 
pens that  the  owners  unite  in  appointing  or 
selecting  one  of  their  number  to  be  her  mana- 
ger, who  is  called  the  ship's  husband.  A  ship's 
husband  is  a  common  expressive  maritime 
phrase,  to  denote  a  peculiar  sort  of  agency,  cre- 
ated and  delegated  by  the  owner  in  regard  to 
the  repairs, equipment, management,and  other 
concerns  of  the  ship.  He  is  understood  to  be 
the  general  agent  of  the  owners,  in  regard  to 
all  the  affairs  of  the  ship  in  her  home  port  ; 
Story,  Agency,  §  35,  and  notes  ;   3  Kent,  176. 

The  ship's  husband,  or  managing  owner, 
may  bind  the  other  owners  for  the  outfit,  care, 
and  employment  of  the  vessel,  but  he  has  no 
power  to  purchase  a  cargo  on  their  credit, 
without  authority  from  them ;  Hewitt,  v. 
Buck,  17  Maine  R.  147  ;  Bell  v.  Humphries, 
2  Stark.  28(5. 

It  is  not  his  duty  as  ship's  husband  to  in- 
sure a  vessel,  and  neither  he,  nor  part  owners, 
who  insure  the  interest  of  their  co-owners  in 
a  vessel  without  express  authority,  can  re- 
cover the  premium  paid  by  them  ;  Turner  v. 
Burrows,  8  Wendell  R.  144  ;  Abbott  on 
Shipping,  p.  136,  n.  p. 


118 


OF    CIIOSES   IN    POSSESSION. 


of  Admiralty  jurisdiction  over  any  claim  in  respect  of  any  mort- 
gage duly  registered  according  to  the  provisions  of  the  Merchant 
Shipping  Act,  1854.(//) 

Sometimes  a  vessel  is  hired  for  a  given  voyage.  The  instru- 
ment by  which  such  hiring  is  effected  is  termed  a  charter-party. 
Whether  the  legal  possession  of  the  ship  passes  to  the  hirer  (or 
charterer,  as  he  is  called)  depends  on  the  stipulations  contained 
in  the  charter-party,  such  as  whether  the  charterer  or  the  owner 
is  to  provide  the  seamen,  and  keep  the  vessel  in  order.(//)  Where 
a  merchant  ship  is  open  to  the  conveyance  of  goods  generally,  it 
is  called  a  general  ship.     The  receipt^  for  the  goods  given  by  the 

(g)   Sect.  11.     See  also  sects.  10,  12,  and  1.3. 

(h)  Dean  v.  Hogg,  10  Bing.  345,   E.    C.    L.  R.  vol.  25  ;  Fenton  v.  City  of  London  Steam 
Packet  Company,   8  Ad.  &  Ell.   835,  E.   C.   L.  R.   vo).   35. 


Sims  V.  Brittain,  4  Barn,  and  Adol.  375. 
Law  Magazine  article,  "Mercantile  Law," 
No.  13.  See  Kent'.s  Commentaries,  p.  147. 
See  also  Story's  Commentaries  on  Agency, 
p.  32.  "The  ship's  husband,"  says  Bea- 
wes  (Lex  Mercatorin,  p.  52),  "is,  as  it 
were,  a  steward  at  land,  to  the  owner  of  the 
ship,  as  the  officer  bearing  that  name  is  on 
board,  when  the  ship  is  atsea."  "  The  ship's 
husband,"  says  Mr.  Bell  (Principles  of  the 
Law  of  Scotland,  p.  449),  "is  the  agent  or 
commissioner  for  the  owners.  He  may  be  a 
part  owner  or  a  stranger.  His  powers  are  by 
mandate  or  written  commission  by  the  own- 
ers, or  by  verbal  appointment ;  the  latter 
chiefly,  where  he  is  also  part  owner.  His 
duties  are, —  1.  To  arrange  everything  for  the 
outfit  and  repair  of  the  ship,  stores,  repairs, 
furnishings  ;  to  enter  into  contracts  of  af- 
freightment;  to  superintend  the  papers  of  the 
ship.  2.  His  powers  do  not  extend  to  the  bor- 
rowing of  money  ;  but  he  may  grant  bills  for 
furnishings,  stores,  repairs,  and  the  necessary 
engagements,  which  will  bind  the  owners,  al- 
though he  may  have  received  money  where- 
with to  pay  them.  3.  lie  may  receive  the 
freight,  but  is  not  entitled  to  take  bills  instead 
of  it,  giving  up  the  lien  by  which  it  is  secured. 
4.  He  has  no  power  to  insure  for  the  owner's 
interest,  without  special  authority.  5.  He  can 
not  give  authority  to  a  law  agent  that  will 
bind  his  owners,  for  expenses  of  a  lawsuit. 
6.  He  cannot  delegate  his  authority."     See 


also  1  Bell's  Commentaries,  p.  411  ;  Abbott 
on  Shipping,  p.  136,  n.  p. 

Where  a  person  supplied  stores  to  a  ship 
on  the  order  of  one  of  several  owners,  who 
acted  as  the  ship's  husband,  and  took  his  note 
in  payment,  and  gave  a  receipt  in  full,  it  was 
held  that  all  the  owners  were  liable,  the  note 
not  being  paid  ;  Schemerhorn  v.  Loines,  7 
Johns.  R.  311. 

The  managing  owner  of  a  vessel  represents 
the  interests  of  all,  and  has  the  same  power 
which  the  major  part  in  interest  have,  with 
respect  to  the  change  of  employment,  and 
the  preparation  and  outfit  of  the  vessel,  in  a 
manner  suited  to  her  profitable  employment, 
in  the  business  to  which  she  is  destined  ;  Hall 
V.  Thing,  10  Shep.  461. 

The  ship's  husband,  or  managing  owner 
may  bind  the  other  owners  for  the  outfit,  care, 
and  employment  of  the  vessel,  but  he  has  no 
power  to  purchase  a  cargo  on  their  credit, 
without  authority  from  them  ;  Hewett  v. 
Buck,  5  Shep.  R.  147. 

For  further  description  of  the  proper  func- 
tions and  powers  of  a  ship's  husband,  see 
Collyer  on  Partnership,  B.  5,  ch.  4,  §  4",  2d 
ed. 

1  It  is  usual  for  the  mate  to  sign  a  receipt 
for  the  goods  shipped,  at  the  time  of  their  de- 
livery at  or  on  board  the  vessel,  and  to  deliver 
it  to  the  shipper.  This  again  is  surrendered, 
when  the  bill  of  lading  has  been  signed  by 
the  master  and  delivered  to  the  shipper. 


OF    SHIPS. 


119 


master  is  called  the  bill  of  lading  ;^  it  states  that  the  goods  are  to  be 


1  A  bill  of  lading  is  the  written  acknowl- 
edgment of  the  master  of  a  vessel,  that  he 
has  received  certain  specified  merchandise 
from  the  shipper,  to  he  conveyed,  on  the 
terms  therein  expressed,  to  their  destination, 
and  at  that  place  to  be  delivered  to  the  par- 
ties therein  designated ;  Abbott  on  Shipp. 
323.  Much  legal  learning  and  talent  have 
been  exercised  in  developing  the  law  of  this 
instrument,  the  principal  heads  of  which  may 
be  succinctly  enumerated  as  follows  : 

1st.  The  effect  of  a  bill  of  lading,  as  evi- 
dence of  the  ownership  of  the  goods  by  the 
consignees. 

A.,  of  Liverpool,  shipped  goods,  which,  by 
the  bill  of  lading,  were  to  be  delivered  to  B. 
or  his  assigns,  in  Philadelphia.  The  freight 
was  payable  in  Liverpool,  and  it  appeared 
that  the  goods  were  shipped  on  account  of 
A.  Held,  that  the  bill  of  lading  vested  the 
property  in  B.,  who  might  maintain  an  action 
in  his  own  name  against  the  owner  of  the 
ship  for  the  negligent  carriage  of  the  goods ; 
Griffith  V.  Ingledew,  6  Serg.  k  Raw.  R.  629. 
See  also  Sammerell  v.  Elder,  1  Binn.  R.  106; 
Ryberg  v.  Snell,  2  Wash.  C.  C.  R.  403  ;  Ar- 
buekle  v.  Thompson,  37  Pa.  St.  R.  ifh.  But 
the  property  will  not  vest  in  the  consignee, 
until  the  bill  of  lading  has  been  delivered  to 
him  by  the  consignor,  or  some  one  authorized 
by  him  to  make  this  delivery  ;  Walter  v. 
Ross,  2  Wash.  C.  C.  R.  283  ;  Stille  v.  Trav- 
erse, 3  Wash.  C.  C.  R.  43;  Allen  v.  Wil- 
liams, 12  Pick.  R.  297  ;  Low  v.  De  Wolf,  8 
Id.  100. 

2d.  The  effect  of  an  indorsement  of  a  bill 
of  lading,  as  a  transfer  of  property. 

Bills  of  lading  are  transferable  by  indorse- 
ment ;  and  when  thus  transferred  by  a  con- 
signee to  a  boiia  fide  purchaser  for  a  good 
consideration,  without  notice  of  adverse 
claims,  they  pass  the  legal  title  of  the  prop- 
erty, to  the  indorsee.  And  where  the  indor- 
see, without  any  laches  on  his  part,  takes 
possession  of  the  property  as  soon  as  its  arri- 
val from  sea  is  known  to  him,  an  attachment 
levied  on  the  property  after  the  assignment, 
will  be  ineffectual  and  inoperative  ;  Winslow 
V.  Norton,  29  Maine  (16  Shep.)  R.  419  ;  The 
Mary  Ann  Guest,  Olcott's  Adm.  R.  498.  So, 
where  the  muster  of  a  vessel  signs  bills  of  lad- 


ing to  third  parties,  bona  fide  assignees  of 
such  bills,  for  value,  will  be  entitled  to  hold 
the  property  as  against  the  charterer  of  the 
vessel ;  Zachrisson  v.  Ahman,  2  Sandf.  Sup.  Ct. 
R.  68.  See  also.  Chandler  v.  Belden,  18  Johns. 
R  157  ;  Dawes  v.  Cope,  4  Binn.  R.  258  ;  Walter 
V.  Ross,  2  Wash.  C.  C,  R.  294 ;  Dows  v.  Rush, 
28  Barb.  R.  157.  But  though  a  bill  of  lading 
is  yrima  facie  evidence  of  property,  in  the 
hands  of  a  bona  fide  indorsee  for  a  valuable 
consideration,  yet  the  indorsement  may  be 
explained  in  certain  circumstances,  according 
to  the  intention  of  the  party  ;  Low  v.  De 
Wolf,  8  Pick.  R.  107  ;  Hibbert  v.  Carter,  1  T. 
R.  745  ;  and  a  fraudulent  holder  of  the  bill, 
can  pass  no  title  to  the  goods  in  such  bill,  to  a 
purchaser  for  value,  without  notice  of  the 
fraud;  Decan  v.  Shipper,  35  Pa.  St.  R.  239  ; 
Dows  V.  Greene,  24  N.  Y.  R.  638. 

Nor  will  the  indorsement  of  a  bill  of  lad- 
ing, without  a  delivery  of  it,  transfer  the 
property  in  the  goods  mentioned  in  it,  as 
against  the  attaching  creditors  of  the  indor- 
ser  ;  Buffington  v.  Curtis,  15  Mass.  R.  528. 
See  also,  on  this  head,  the  cases  cited  in  Ab- 
bott on  Shipp.  by  Story,  p.  638,  note  (1)  ; 
and,  that  possession  of  one  of  the  three  un- 
usual bills  of  lading,  is  not  of  itself  sufficient 
evidence  of  the  ownership  of  the  goods,  see 
Graff  V.  Caldwell,  8  Rich.  R.  529  ;  S.  C.  9 
Id.  325. 

3d.  The  effect  of  a  bill  of  lading,  as  a  eon- 
tract. 

(A)  As  to  the  condition,  contents,  and 
quantity  of  the  goods  specified  in  the  instru- 
ment. 

An  acknowledgment  in  a  bill  of  lading, 
that  certain  cases  of  goods  were  "  shipped  in 
good  order,"  "contents  unknown,"  extends 
only  to  the  external  condition  of  the  cases, 
and  not  to  the  condition  or  package  of  the 
goods ;  Clark  v.  Barnwell,  12  Howard  R.  272  ; 
and  so  of  bales  of  cotton  described  in  a  bill 
of  lading  as  "  in  good  order  and  well-condi- 
tioned ;"  Bradstreet  v.  Heran,  Blatch.  C.  C. 
R.  116  ;  and  see  West  v.  Berlin,  3  Clarke's 
R.  532.  But  in  an  action  against  the  owners 
of  a  steamboat,  to  recover  for  the  loss  of  a 
quantity  of  molasses  contained  in  barrels, 
which  the  captain  of  the  vessel  had  received 
on  board  at  New  Orleans,  and  for  which  he 


120  OF   CUOSES   IN    POSSESSION. 

delivered  to  the  consignee  or  his  assigns;  and  by  the  custom  of 
merchants,  the  bill  of  lading,  when  indorsed  by  the  consignee 


signed  a  bill  of  lading,  stating  it  to  have  been  which  should  be  paid  at  the  rate  of  four  dol- 
received  in  good  order  and  well-conditioned,  lars  per  chaldron,  Pictou  measure  of  thirty 
and  to  be  deliverable  to  the  plaintiff  in  Pitts-  cwt..  by  an  approved  acceptance  within  thir- 
burg,  it  was  held,  that  the  defendant  could  ty  days  from  discharging,  for  which  twelve 
Dot  go  into  evidence  to  prove  that  the  barrels  days  were  allowed.  The  bill  of  lading  stated 
were  not  full  when  delivered  on  board,  and  the  cargo  at  four  hundred  chaldrons,  weight 
that  they  were  in  so  bad  order  as  to  leak.  In  of  which  was  unknown.  It  turned  out  that 
such  case,  the  loss  of  hoops,  and  leakage  oc-  there  were  nearly  four  hundred  and  sixty 
oasioned  thereby,  which  occurred  while  the  chaldrons,  of  thirty  cwt.  B.'s  agent  offered  to 
oon.'^ignor  was  carrying  the  casks  to  the  wharf,  pay  in  cash  for  four  hundred  chaldrons  at  the 
and  unloading  them  from  the  drays,  so  that  agreed  rate,  which  was  refused  by  A.  Held, 
the  captain  might  put  them  in  his  boat;  when  that  the  words  "  thirty  cwt."  were  de.scrip- 
seen  and  known  by  the  carrier,  was  not  such  tive  of  the  weight  of  a  chaldron,  and  therefore 
a  latent  defect  as  would  excuse  the  carrier  ;  that  A.  was  entitled  to  freight  for  four  hun- 
Warden  v.  Greer  6  Wat.  R.  424.  And  see  dred  and  sixty  chaldrons,  and  that  B.'s  offer 
also  Bowman  v.  Kennedy,  1  Am.  L.  Reg.  119;  to  pay  but  for  four  hundred  chaldrons,  and  his 
Ship  Howard  v.  Wissmain,  18  How.  U.  S.  R.  refusal  to  pay  any  more,  released  A.  from  his 
231  ;  Zarega  v.  Poppe,  1  Abb.  Adm.  R.  397  ;  obligation  to  wait  thirty  days  after  the  dis- 
Nelson  v.  Stephenson.  5  Duer's  R.  538.  charge,    within   which    time    he    began    this 

And  although,  as  between  the  shipper  of  suit;  Ward  i;.  Whitney,  3  Sandf.  Sup.  Ct.  R. 
goods  and  the  owner  of  the  vessel,  the  bill  of    399. 

lading  may  be  explained,  so  far  as  to  show  (B)  The  effect  of  a  bill  of  lading,  as  a  con- 
the  quantity  of  the  goods,  their  condition,  and  tract,  and  who  may  sue  on  it. 
the  like  ;  yet,  as  between  the  owner  of  the  A  bill  of  lading  promising  to  deliver  goods 
vessel,  and  an  assignee  for  a  valuable  consid-  to  A.  or  his  assigns,  was  sent  by  A.  to  B.,  un- 
eration,  paid  on  the  strength  of  the  bill  of  indorsed,  in  a  letter  containing  no  words  of 
lading,  it  may  not  be  explained  ;  Dickerson  transfer.  Held,  that  B.  could  maintain  uo 
V.  Seelye,  12  Barb.  S.  R.  99  ;  Bradstreet  v.  action  against  C,  the  owner  of  the  vessel,  as 
Heron,  1  Abb.  Adm.  R.  209  ;  White  v.  Van  surviving  owner  or  as  assignee  of  the  goods, 
Kirk    25  Barb.  R.  16.  and  that  C.  having  delivered  part  of  the  goods 

As  a  general  rule,  an  action  founded  on  the  to  B.  was  not  thereby  estopped  to  deny  his 
express  contract  contained  in  a  bill  of  lading,  claim  to  the  residue  ;  Stone  v.  Swift,  4  Pick, 
should    be   instituted    by   the   shipper,    with    R.  389. 

whom  the  master  contracted,  or  by  the  owner  Where  the  master  of  a  vessel  signed  a  bill 
of  the  goods,  where  the  shipper  acted  as  his  of  lading  to  deliver  the  whole  of  a  quantity 
agent.  An  indorsement  of  the  bill  of  lading,  of  coffee,  shipped  on  board  his  vessel,  to  one 
does  not  assign  the  contract  contained  in  it.  party,  and  subsequently  signed  another  bill 
When  a  bill  of  lading,  by  which  goods  are  of  lading,  to  deliver  a  part  of  the  same  to 
made  deliverable  to  a  consignee  by  name,  is  another  party,  held,  that  he  waslfable  to  the 
transmitted  to  him  for  advances,  or  to  indem-  second  party,  although  he  had  delivered  the 
nify  him  against  liabilities  in  respect  to  the  whole  of  the  coffee  to  the  first  ;  Stillev.  Trav- 
consignment  which  they  represent,  it  vests  in  erse,  3  Wash.  C.  C.  R.  43. 
him  a  property  in  the  goods,  general  or  spe-  A.,  an  agent  of  B., -contracted  with  C,  a 
cial,  at  the  time  of  the  delivery  onboard,  and  common  carrier,  to  deliver  a  quantity  of 
renders  the  master  responsible  to  him  ;  Dows  wheat  to  B.,  in  New  York.  A  bill  of  lading 
V.  Cobb,  12  Barb.  S.  R.  310.  was  drawn  and  signed,  containing  the  agree- 

A  charter-party  was  made  between  A.  and  ment.  The  wheat  having  been  delivered  to 
B.,  by  which  A.  agreed  to  bring  from  Pictou,  D.,  in  New  York,  for  whom  A.  was  also  agent, 
to  New  York,  a  cargo  of  coal,  the  freight  of    B.  sued  C.  for  damages,  for  breach  of  contract, 


OF    SHIPS.  121 

witli  his  name,  becomes  a  negotiable  instrument,  the  delivery 
of  which  ^passes  the  property  in  the  goods ;(z)  but  it  was 
formerly  held  that  the  right  to  sue  upon  the  contract  con-  ■-  -■ 
tained  in  the  bill  of  lading  to  carry  and  deliver  the  goods  did  not 
pass  by  the  indorsement.(A)  It  is,  however,  now  enacted,  that 
every  consignee  of  goods  named  in  a  bill  of  lading,  and  every 
indorsee  of  a  bill  of  lading,  to  whom  the  property  in  the  goods 
therein  mentioned  shall  pass  upon  or  by  reason  of  such  consign- 
ment or  indorsement,  shall  have  transferred  to  and  vested  in 
him  all  rights  of  suit,  and  be  subject  to  the  same  liabilities  in 
respect  of  such  goods,  as  if  the  contract  contained  in  the  bill  of 
lading  had  been  made  with  himself  (;)  The  money  payable  for 
the  hire  of  a  ship,  or  for  the  carriage  of  goods  in  it,  is  the  freight, 
which,  whether  accrued  or  accruing,  is  assignable  in  the  same 
manner  as  any  other  ordinary  chose  in  action. (w/)  The  delivery 
of  goods  imported  from  foreign  parts,  and  the  lien  of  the  ship- 
owner for  their  freight,  are  now  regulated  by  the  provisions  of 
the  Merchant  Shipping  Act  Amendment  Act,  1862.(;z) 

(i)   Caldwell  v.  Ball,  1  T.  Rep.  205,  216. 
(/t)   Thompson  v.  Dominy,  14  Mee.  &  Wels.  40.3. 
(/)  Stat.  18  &  19  Vict.  c.  Ill,  s.  1. 

(w)   Douglas  V.  Russell,    4  Sim.  524  ;    1  M.  &  K.  488  ;    Leslie  v.  Guthrie,    1    New  Cases, 
697  ;  Lindsay  v.  Gibbs,  22  Bear.  522. 
(«)    Stat.  25  &  26  Vict.  c.  63,  ss.  66-78. 


and  evidence  was  offered,  that  A.  gave  parol  are  held  liable  for  losses  which  may  occur  be. 
directions  to  C,  to  deliver  the  wheat  to  D.  yond  it  ;  Scotthorn  v.  The  So.  Staffordshire 
Held,  that  a  bill  of  lading  was  of  a  twofold  Railw.  Co.,  18  Eng.  L.  &  Eq.  R.  553  ;  Mus- 
character  ;  as  far  as  it  was  a  receipt,  that  it  champ  v.  The  Lancaster,  &c.,  8  Mees.  & 
could  be  explained  by  parol  evidence,  but  as  Wels.  R.  421  ;  Croach  v.  The  London  &  N. 
a  contract  for  forwarding,  it  could  not  be  al-  Western  Railw.  Co.,  25  Eng.  L.  &Eq.  R.  287. 
tered  by  parol  testimony,  and  that  such  evi-  But  the  rule  to  be  deduced  from  the  Ameri- 
dence,  therefore,  in  this  case  was  inadmissi-  can  decisions,  is  not  so  stringent,  merely  hold- 
ble  ;  Wolfe  v.  Myers,  3  Sandf.  Sup.  Ct.  R  7.  ing  the  carrier  bound  to  transport  and  deliver 
And  see  also  Meyer  v.  Peck,  33  Barb.  R.  according  to  the  established  usages  of  busi- 
532  ;  Steamboat  John  Owen  v.  Johnson,  2  0.  ness  ;  Van  Sautvoord  v.  St.  John,  25  Wend. 
R.  (N.  S.)  142  ;  Fitzhugh  v.  Wiman,  5  Sel-  R.  669  ;  Farmer's  Bk.  v.  Champlain  Trans, 
den's  R.  559.  Co.,  18  Vt.  R.  140,  &  23  Id.  209  ;  Hood  v.  N. 

It  is  a  doctrine  of  the  English  courts,  that  Y.  &  New  Haven  R.  R.,  22  Conn.  R.  508-512  ; 
carriers  who  receive  merchandise  to  be  trans-  Nutting  i;  Connecticut  River  R.  R.  Co.,  1 
ported  beyond  the  line  of  their  own  route,  Gray's  R.  502;  Perkins  «.  Portland,  &c.,  R. 
without  any  special  agreement,  do  not  limit  R.  Co.,  47  Maine  R.  573  ;  Angle  v.  Mississip- 
their   liability  to    their    own  route  only,  but    pi,  Ac,  R.  R.  Co.,  9  Iowa  R.  487. 


*rAiiT  II. 

[*60]  OF  CHOSES  IN  ACTION. 


CHAPTER    I. 


OF    ACTIONS    EX    DELICTO. 


In  addition  to  movable  goods,  or  ehoses  in  possession,  we  have 
observed, («)  that  there  existed  also  in  ancient  times  ehoses  in  action, 
or  the  liberty  of  proceeding  in  the  courts  of  law  either  to  recover 
pecuniary  damages  for  the  infliction  of  a  wrong  or  the  non-per- 
formance of  a  contract,  or  else  to  procure  the  payment  of  money 
due.  The  actions  to  be  thus  brought  were,  of  course,  not  real, 
but  purely  personal  actions.  Real  actions  were  brought  for  the 
recovery  of  land  or  real  property;  but  the  abovementioned  actions 
were  against  persons  only,  and  the  object  was  merely  to  obtain 
from  them  money,  being  the  only  recompense  then  generally 
available.  In  this  respect,  however,  the  law  has  recently  under- 
gone some  change;  for  the  Common  Law  Procedure  Act,  1854, 
now  enables  the  plaintift"  in  any  action,  except  replevin  and 
ejectment,  in  any  of  the  superior  courts,  to  claim  a  writ  of 
mandamus  commanding  the  defendant  to  fullil  any  duty  in  the 
fulfilment  of  which  the  plaintiff  is  personally  interested,  and  by 
the  non-performance  of  which  he  may  sustain  damage.(6)^     And 

((/)  A7ite,  p.  4. 

(A)  Stat.  17  A  18  Vict.  c.  125,  ss.  68,  69  ;  Norris  v.  Irish  Land  Company,  8  E.  &  B.  512, 
E.  0.  L.  R.  vol.  92. 

1  The  appropriate  functions  of  a  writ  of  R.  237 ;   Gillespie  v.  Wood,  4  Hump.  R.  437  ; 

mandamus,  are  the  enforcement  of  duties  to  Board  of  Police  v.  Grant,   9  Smed.  &  Marsh, 

the  public,  by  officers  and  others,  who  neglect  R.  97.     Its  office   is  to  stimulate,  not  to  re- 

or  refuse  to    perform    them,    and  for  which  strain,    the    exercise    of    official    functions ; 

there  is  no  other  special  legal  remedy  ;  Com-  School   Directors  v.  Anderson,   45  Pa.  St.  R. 

monwealth  v.  Commissioners,  &c.,  37  Pa.  St.  388  ;   Howe   v.   Commissioners,   47  Id.   361 ; 


OF   ACTIONS   EX   DELICTO.  123 

it  also  provides,  that  in  all  cases  of  breach  of  contract  or  other 
injury,  where  the  party  injured  is  entitled  to  maintain  and  has 
brought  an  action,  he  may  claim  a  writ  of  injunction  against  the 
repetition  or  continuance  of  such  breach  of  contract  or  i-^p-,-! 
*other  injury,  or  the  committal  of  any  breach  of  contract 
or  injury  of  a  like  kind,  arising  out  of  the  same  contract  or  relate 
ing  to  the  same  property  or  right  ;(c)  and  the  Common  Law 
Procedure  Act,  1860,  requires  that  in  the  above  cases  the  costs  of 
the  writ  of  mandamus  or  injunction  shall  be  paid  by  the  defendant, 
unless  otherwise  ordered  by  the  court  or  a  judge.(c?)  But  the 
rights  thus  given  do  not  appear  to  have  materially  interfered 
with  the  wider  and  more  ancient  jurisdiction  of  the  Court  of 
Chancery  in  issuing  an  mjundion  to  restrain  the  wrongdoer  from 
continuing  his  wrong,  or  in  decreeing  the  specific  jperformance  of  a 
contract.  By  a  recent  statute  the  Court  of  Chancery  is  em- 
powered to  award  pecuniary  damages,  either  in  addition  to  or  in 
substitution  for  an  injunction  or  specific  performance. (e)^  In 
many  cases,  however,  money  alone  is  a  sufiicient  recompense; 

(c)   Stat.  17  A  18  Vict.  c.  125,  ss.  79-82.  (g)   Stat.  21  &  22  Vict.  c.  27,  s.  2. 

{d)  Stat.  23  &  24  Vict.  c.  126,  s.  32. 

City  V.  Johnson,  Id.  382  ;  Lamb  v.  Lynd,  44  sustain  a  bill  for  damages,  on  a  breach  of 
Id.  336;  as  a  remedy  to  enforce  mere  pri-  contract,  it  is  clearly  not  the  ordinary  juris- 
vate  rights  of  property,  it  is  restricted  to  diction  of  the  court."  Hence,  where  a  con- 
cases  where  the  applicant  has  no  adequate  tract  has  been  made,  and  the  defendant  has 
remedy,  by  action,  in  the  due  course  of  the  disabled  himself  from  performing  it,  and  a 
common  law  ;  Wilkinson  «.  Providence  Bank,  specific  performance  is  asked,  compensation 
3  R.  I.  R.  22  ;  and  where  there  is  a  remedy  will  be  given  ;  Lee  v.  Howe,  27  Misso.  R. 
by  action  there  cannot  be  a  mandamus;  521;  Hook  tJ.  Ross,  1  Hen.  &  M.  R.  310  ;  Dus- 
Green  v.  Wood,   35  Barb.  R.  653.  tin  v.  Newcomer,  6  Ham.  R.  49  ;    Mitchell  v. 

Where  a  private  right  is  the  object  of  OTff/j  Sheppard.    13  Texas  R.   484;    Woodward  v. 

damns,  the   person   interested  should  be  the  Harris,   2  Barb.   Sup.   C.  R.  439;   Barlow  t'. 

relator;   but  where  the  object  is  the  execu-  Scott,   24  N.  Y.   R.  40  ;  and  in  cases  of  de- 

tion  of  a  public  statute,  any  citizen  may  be  a  feetive  execution,  if  the  contract  can  be  sub- 

relator,  and  he  is  not  bound  to  show  a  special  stantially  executed,  equity  regards   compen- 

interest  in  the  object ;   County  of  Pike  v.  The  sation  as  equivalent  to  performance  ;   Philad. 

State,  11  Illo.  R.  202.     But  the  writ  does  not  A  Reading  R.  R.  Co.  v.  Lehigh  Nav.  Co.,  36 

lie  against  a  private    citizen;    The    State  v.  Pa.   St.    R.    211  ;  but  see   Lewis  v.   Yale,   4 

Powers,  14  Geo.  R.  388.  Florida  R.   418.     If,   however,   the  plaintiff 

In  California,  it  lies  by  statute,  where  it  is  knew  when  he  filed  his  bill  for  a  specific  per- 

the  only  means  of  putting  one  in  possession  formance  of  the  contract,  that  the  defendant 

of  property,  to  which  he  is  entitled  under  a  could   not   perform  it,  equity  will  not  decree 

decree;  Fremont  r.  Crippen,  10  Cal.  R.  211.  damages  for  its   non-performance,  but  leave 

•  In   Hatch  v.  Cobb,   4  Johns.    C.    R.   500,  the  plaintiff  to  his  remedy  at  law  ;   McQueen 

it  was  said  by  Chancellor  Kent,  that  "  though  v.   Chouteau,    20   Misso.    R.    222;    Hatch   v. 

equity,   in  very  special  cases,   may  possibly  Cobb,  4  Johns.  C.  R.  500. 


124  OF  cnosES  in  action. 

and  then  the  right  to  bring  an  action  at  law,  in  other  words  a 
legal  chose  in  action,  constitutes  a  valuable  kind  of  personal 
property. 

The  inflietion  of  a  wrong,  and  the  non-performance  of  a  con- 
tract, are  evidently  the  two  grand  sources  from  which  personal 
actions  ought  to  proceed.  If  one  man  commits  a  wrong  against 
another,  justice  evidently  requires  that  he  should  give  him  satis- 
faction ;  and  if  one  man  enters  into  a  contract  with  another,  he 
certainly  ought  to  keep  it,  or  make  reparation  for  its  breach  ;  or 
if  the  contract  be  to  pay  a  sum  of  money,  the  money  ought  to  be 
duly  paid.  Personal  actions  are  accordingly  divided  by  the  law 
of  England  into  two  great  classes,  actions  ex  delicto^  a4id  actions 
ex  coniraciu.{f )  The  former  arises  in  respect  of  a  wrong  com- 
i-^  mitted,  called  in  law  French  a  *tor^ ;  the  latter,  in  re- 
^  "-'  spect  of  a  contract  made  for  the  performance  of  some  ac- 
tion, which  thus  becomes  a  duty,  or  for  the  payment  of  some 
money,  which  thus  becomes  a  debt.  Let  us  consider,  in  the  pres- 
ent cliapter,  the  right  of  action  which  occurs  ex  delicto,  or  in  re- 
spect of  a  tort. 

The  ancient  law,  in  its  dread  of  litigation,  confined  the  remedy 
by  action  for  a  tort  or  wrong  committed,  to  the  joint  lives  of  the 
injurer  and  the  injured.  If  either  party  died,  the  right  of  action 
was  at  an  end,  the  maxim  being  actio  jyersonalis  moritar  cum  yer- 
sond.{g)  In  this  rule,  actions  ex  delicto  only  were  included;  of 
which,  however,  there  seem  to  have  been  more  than  any  other  in 
early  times.  But  by  an  early  statute,(A)  the  same  action  was 
given  to  the  executor  for  any  injur}'^  done  to  the  personal  estate 
of  the  deceased  in  his  lifetime,  whereby  it  became  less  beneficial 
to  the  executor,  as  the  deceased  himself  might  have  brought  in 
his  lifetime.'     And  by  a  recent  statute,(/)  an  action  is  given  to  the 

(/)   3  Black.  Com.  117.  (g)    1  Wms.  Saund.  216  a,  n  (1). 

(A)   Stat.  4  Edw.  Ill,  c.  7,  dp  bonis  asportatis  in  vita  lestatoris,  extended  to  executors  of 
executors  by  stat.  15  Edw.  Ill,  c.  5. 
(t)  Stat.  3  A  4  Will.  IV,  c.  42,  s.  2. 

1  The  provisions  of  the  statute  4th  Edw.  Under  this  enactment,  it  is  held,  that  an 
III,  c.  7,  if  rot  the  statute  itself,  and  the  action  of  tort  survives  to  the  repre.«entatives 
judicial  interpretations  of  it,  have  been  of  one  vphose  personal  property  has  been  in- 
adopted  in  almost  every  State  of  the  Union,  jured.    Thus  in  Alabama,  Nettles  v.  Barnett, 


OF    ACTIONS    EX   DELICTO. 


125 


executors  or  administrators  of  any  person  deceased  for  any  injurj' 
to  the  real  estate  of  such  person,  committed  within    six   calendar 


8  Porter's  K.  181  ;  Coker,  Admr.  v.  Crozier, 
5  Ala.  R.  369  ;  16  Ala.  R.  698.  In  Kentucky, 
Kennedy  et  al.  v.  McAfiel's  Exrx,,  1  Lit.  R. 
169  ;  Lynn's  Admr  ,  v.  Lisk,  .9  B.  Monroe's 
R.  1.35.  In  Maine,  Hill,  Admr.,  v.  Penny, 
17  Maine  R.  410.  In  Maryland,  Fister  v. 
Beale's  Admrs.,  1  Har.  <fc  Johns.  R.  31  ;  Ken- 
nedy, Exrx.,  V.  Wilson,  1  Mary.  R.  102.  In 
Missouri,  Higgins  v.  Breen,  Admr.,  9  Misso. 
R.  500  ;  Smith,  Admr.,  v.  Grove,  12  Misso. 
R.  62;  Kingsbury  «.  Lane,  21  Misso.  R.  115. 
In  New  Hampshire,  French,  Admr.,  v.  Mer- 
rill, 6  N.  H.  R.  465.  In  New  Jersey,  Nor- 
cross  f.  Boulton,  1  Harrison's  R.  312;  Stew- 
art V.  Richey,  2  Id.  164.  In  New  York, 
Babcock  v.  Booth,  2  Hill's  R.  184  ;  Snyder 
etal.,  Exrs,,  v.  Croy,  2  Johns.  R.  227.  In 
North  Carolina,   Arnold  v.  Exrx.   of  Lanier, 

I  Carol.  L.  Reg.  529  ;  McKinnis's  Exrs.,  v. 
Oliphant's  Exrs.,  1  Hayw.  R.  3.  In  Penn- 
sylvania, Clarke  v.  McClelland,  9  Pa.  St.  R. 
128;  Kline  v.  Guthart,  2  Penna.  R.  491; 
Keito,  Admr.,  v.  Boyd,  16  Serg.  &  Raw.  R. 
300 ;  Nicholson  et  al.,  Exrs.,  v.  Elton, 
Admr.,  13  Id.  415  ;  Reist,  Admr.,  v.  Heib- 
brenner,  11  Id.  131 :  Kater  v.  Steinruck,  40 
Pa.  St.  R.  501.  Ik  Massachusetts,  Pitts  v. 
Hale,  3  Mass.  R.  321  ;  Jenney  v.  Jenney,  14 
Id.  232  ;  Mellen  et  al.  v.  Baldwin,  4  Id.  480; 
Towle,  Admrx.,  v.  Lovet,  6  Id.  394.  In 
Georgia,  Robinson  v.  McDonald,  2  Kelly's 
R.  120.  So  in  Connecticut,  Kirby,  Admr., 
V.  Clark,  1  Root's  R.  389.  So  in  South  Caro- 
lina, Exrs.  of  Middleton  v.  Robinson,  1 
Bay's  R.  58.  So  in  Tennessee,  Douglass  v. 
Morford,  7  Yerg.  R.  84  ;   Cheep  v.  Wheatley, 

II  Humph.  R.  557.  In  "Vermont,  Hall,  Admr., 
V.  Walbridge,  2  Aiken's  R.  215;  Manwell, 
Admrx.,  v.  Brigg.s,  17  Vt.  R.  181  ;  Admr.  of 
Barrett  v.  Copeland,  20  Id.  247;  Dana, 
Admr.,  v.  Lull,  21  Id.  389  ;  Bellows  v.  Admr. 
of  Allen,  22  Id.  108.  In  Illinois,  Read  v. 
Peoria  &  Oquawka  R.  R.  Co.,  11  111.  R.  403. 
In  California,  Ilalleck  v.  Mixer,  16  Cal.  R. 
574.  In  Delaware,  Waples  v.  Mcllvaine,  5 
Hrirring.  R.  381.  And  in  Virginia,  Morris, 
Admr.  v.  Dawney  et  al.,  Admr.»,  3  Hen.  <t 
Munf.  R.  127  ;  Vaughan'g  Admr.  v.  Winklee's 
Exr.,   4  Munf.  R.   136.       This  principle  has 


also  been  sanctioned  by  the  Supreme  Court  of 
the  United  States;  Unit.  Sts.  v.  Daniel  etal., 
6  How.  R.  13  ;  and  see  al.=o.  Hatch  v.  Eustice, 
1  Gallis.  C.  C.  R.  160.  In  Ohio,  it  has  been 
decided,  that  the  representatives  of  a  dece- 
dent can  only  maintain  such  action  as  their 
testator  or  intestate  might,  if  living;  Benja- 
min V.  Le  Baron's  Admr.,  15  0.  R.  526.  In 
Connecticut,  it  has  been  held,  that  an  action 
for  false  warranty,  is  founded  on  the  contract 
of  warranty,  and  is  therefore  not  abated  by 
the  death  of  the  plaintiff  during  its  pendency, 
although  in  form  an  action  of  tort ;  Booth 
V.  Northrop,  27  Conn.  R.  325. 

In  many  of  the  States,  it  is  also  held,  that 
an  action  for  a  tort  may  be  maintained 
against  the  representatives  of  the  wrongdoer, 
for  an  injury  done  to  personal  property  ; 
where  this  rule  prevails,  it  depends  for  the 
most  part  on  the  acts  of  the  legislatures  of 
the  States.  Even  where  this  doctrine  is  de- 
nied, if  the  property  of  the  decedent  has 
been  benefited  by  the  wrongful  act,  some 
other  remedy  may  be  had,  to  recover  the 
amount  by  which  the  estate  has  been  bene- 
fited ;  or,  the  specific  thing,  or  its  value,  which 
the  estate  has  gained. 

The  courts  of  Kentucky,  Maryland,  Mis- 
souri, New  Jersey,  and  North  Carolina,  have 
decided,  that  tort  for  an  injury  to  personal 
property,  will  survive  against  the  representa- 
tives of  the  wrongdoer;  Kennedy  et  al.  v. 
McAfiel's  Exrx.,  1  Lit.  R.  169  ;  Lynn's 
Admr.  V.  Sisk,  9  B.  Monroe's  R.  135;  Brum- 
mett  V.  Golden  et  al.  Admrs.,  9  Gill's  R.  95  ; 
Higgins  V.  Breen,  Admr.,  9  Misso.  R.  500; 
Jeweit  V.  Weaver,  Admr.,  10  Id.  234  ;  Mount 
V.  Exrs.  of  Cubberly,  4  Harrison's  (N.  J.) 
R.  124  ;  Tahume  v.  Exrs.  of  Bray,  1  Id.  53  ; 
Arnold  v.  Exrx.  of  Lanier,  1  Caro.  L.  Reg. 
529 :  Helme  v.  Sanders,  3  Hawks.  R.  565  ; 
Cutler  et  al.  v.  Brown's  Exrs.,  2  Hayw.  R. 
182;  .Spivey  «.  Farmer's  Admr.,  Id.  339; 
McKinnis's  Exrs.  v.  Oliphant's  Exrs.,  1  Id. 
3;  Decrow  y.  Monis's  Exrs.,  Id.  21:  Clark 
V.  Keenan  et  al.,  Id.  308;  Avery  v.  Moore's 
Exrs.,  Id.  362.  So  also,  it  seems,  in  Virgi- 
nia; Vaughan's  Admr.  v.  Winkler's  Exr.,  4 
Munf.  R.  136.     In  Georgia,  an  action  of  de- 


126 


OF   CHOSES   IN    ACTION. 


months  before  liis  deatli,  for  which  an  action  mic^ht  have  been 
maintained  by  him ;  so  that  the  action  be  brouglit  within  one 
year  after  the  death  of  such  person  ;  and  the  damages,  when  re- 
covered, are  to  be  part  of  the  personal  estate  of  such  person.* 


oeit  may  be  brought  against  nn  administra- 
tor for.  the  fraud  of  his  intestate .;   Admr.  of 
Gruse  V.  Bryant,    2  Kelly's  R.    fi6.     But  see 
Irwin  V.  Sterling,  27  Geo.  R.  56,S  ;  Glisson  v. 
Carter,  28  Id.  616.    By  the  law  of  New  York, 
though  an  action  of  tort  may  be  brought,  yet 
it  can  only  be  in  those  cases,  where  the  estate 
of  the  wrongdoer  is  increased  or  benefited  by 
his  trespass  ;   Troup  v.    Exrs.   of  Smith,   20 
Johns.  R.  23;    The   People  v.   Gibbs  et  al., 
Exrs.,  9  Wend.  R.  29  ;   2  Kt.  Com.  416.     The 
law   of  Pennsylvania  is  somewhat  singular  ; 
while  an  action   of   replevin   may  be  main- 
tained against  the  representatives  of  a  dece- 
dent ;  Harlan   v.  Harlan,  17  Pa.  St.  R.  513  ; 
Keito,  Admr.  v.   Boyd,  10  Serg.   &  Raw.  R. 
300  ;   Sharick  v.  Huber,  6  Bin.  R.  3  ;  Weaver 
V.    Lawrence,   1   Dal.    R.    157,    and  also  an 
action  on  the  case  for  deceit;  Boyd's  Exrs. 
V.  Browne,  6  Pa.  St.  R.  311;   and,  an  action 
for  neglect,  begun  against  an  attorney  in  his 
lifetime,  has  been  held  to  survive  against  his 
representative;   Miller  v.  Wilson,  24  Pa.  St. 
R.  122  ;    an  action  of  trover,   or  trespass  vi 
et  armis,  cannot  be  brought;   Heuch  et  ux., 
Admrs.  v.  Melzer  et  al.,  execs,  6  Serg.  &  Raw. 
R.  272;   Keito,  Admr.  v.   Boyd,  16  Id.  300; 
Lattimore  et  al.   Exrs.  v.   Simmons,   13  Id. 
184;  Nicholson  et  al.  Exrs.  v.  Elton,  Admr. 
13  Id.  415.     In  Arkansas,  an  action  of  re- 
plevin, begun  against  one  who  dies,  will  sur- 
vive by  statute,  against  one  who  might  origi- 
nally be  prosecuted  for  the  same  cause   of 
action.     Dixon  v.  Thatcher's  Heirs,   3  Eng. 
R.  137. 

In  almost  all  of  those  States  in  which  an 
action  of  tort  will  not  lie  against  the  executor 
or  administrator,  of  a  testator  or  intestate, 
who  has  committed  some  injury  to  personal 
property,  some  other  remedy  is  available  to 
the  injured  party,  if  the  estate  of  the  wrong- 
doer has  been  benefited  by  bis  wrong.  Thus 
in  Alabama ;  Nettles  v.  Barnett,  8  Porter's  R. 
181  ;  Coker,  Admr.  v.  Croz.ier,  5  Ala.  R.  369  ; 
16  Id.  398.  So  in  Massachusetts;  Cravarth 
V.  Plympton,  Admr.,  13  Mass.  R.  394  ;  Jarvis, 
Admr.  v.  Roger,  15  Id.  398  ;  Pitts  v.  Hale,  3 


Id.  321 ;  Jenney  v.  Jenney,  14  Id.  232  ;  Bar- 
nard V.  Harrington,  3  Id.  228;  Badlam,  Exr. 
V.  Tucker,  1  Pick.  R.  284  ;  Perry  .v  Wilson, 
7  Mass.  R.  395  ;  Mellen  et  al.  v.  Baldwin,  4 
Id.  480.  So  also  in  South  Carolina  ;  Exrs. 
of  Middleton  v.  Robinson,  1  Bay's  R.  58. 
In  Tennessee,  by  the  act  of  1835-6,  c.  77,  all 
actions,  except  for  wrongs  affecting  the  per- 
son or  character  of  the  plaintiff,  commenced 
by  or  against  a  deceased  person  in  his  life- 
time, may  be  revived  by  or  against  his  repre- 
sentatives ;  and  even  before  that  statute,  the 
law  would  give  a  remedy  for  injury  to  per- 
sonal property,  though  an  action  of  tort, 
technically  speaking,  might  not  survive  ;  Nor- 
ment  v.  Smith,  1  Hump.  R.  46 ;  Jones  v. 
Littlefleld,  3  Yerg.  R.  144  ;  Cocke  v.  Trotter, 
10  Id.  213.  In  Maine  it  has  been  held,  that 
upon  the  death  of  the  defendant  in  replevin, 
the  suit  abates,  the  administrator  not  being 
authorized  to  come  in  and  defend  ;  Merrit  v. 
Lumbert,  8  Greenl.  R.  128.  In  Indiana, 
although  an  action  of  waste  cannot  be  brought 
by  an  administrator  dc  bonis  noii,  against  the 
administrator  of  the  original  administrator, 
yet  it  may  be  maintained  by  the  creditors  of 
the  original  intestate  ;  Ferguson  et  al.  v. 
Sweeney,  6  Black.  R.  547  ;  Lewis,  Admr.  v. 
Houston,  7  Id.  335  ;  Young  v.  Kimball,  8.  Id. 
167.  In  Mississippi  and  Louisiana,  actions 
commenced  do  not  abate  by  the  death  of  either 
party  ;  Torry  et.  al.  v.  Robinson,  2  Cush. 
(Miss.)  R.  193  ;  Purtevant  v.  Pendleton's 
Admr.,  1  Id.  41 ;  1  La.  R.  1 11  ;  6  Id.  301 ;  11 
Id.  357  ;  6  Robinson's  R.  44 ;   1  Id.  522. 

1  Whether  an  action  of  tort  can  be  main- 
tained by  the  representatives  of  a  decedent, 
for  an  injury  done  to  his  real  property  ;  as  also 
whether  the  representatives  of  a  trespasser 
upon  real  property,  can  be  made  defendants 
in  a  suit  brought  to  recover  damages  for  such 
an  injury,  has  not  been  so  generally  decided 
by  the  courts  of  the  several  States,  as  the  in- 
quiries concerning  the  surviving  of  actions 
for  injuries  to  personal  property. 

The  former  question  has  been  decided  in 
the  affirmative  by  the  courts  of  Maryland, 


OF   ACTIONS   EX   DELICTO.  127 

And  by  a  still  more  recent  statute,(/t)  it  is  pro^dded,  that  when- 
ever the  death  of  a  person  shall  be  caused  by  such  wrongful  act, 
neglect  or  default,  as  would  (if  death  had  not  ensued)  have  en- 
titled the  party  injured  to  maintain  an  action  and  recover  dam- 
ages in  respect  thereof,  the  wrongdoer  shall  be  liable  to  an  action 
for  damages,  notwithstanding  the  death  of  *the  person  p^^on 
/ -^ured,  and  although  the  death  shall  have  been  caused  '-  -' 
under  such  circumstances  as  amount  in  law  to  felony.  Under  this 
act,  one  action  only  can  lie  for  the  same  subject-matter  of  com- 
plaint ;  and  such  action  must  be  commenced  within  twelve  calen- 
dar months  after  the  death  of  the  deceased,(?)  in  the  name  of  his 
executor  or  administrator, (m)  and  must  be  for  the  benefit  of  the 
wife,  husband,  parents,  grandfather  and  grandmother,  stepfather 
and  stepmother,  children,  grandchildren,  and  stepchildren  of  the 

(7.)   Stat.   9  &  10  Viet.  c.  93.     See  Pym  v.  The   Great  Northern   Railway  Company,  2 
Best  &  Smith,  759,   E.  C.  L.  R.  vol.  110. 

(/)   Sect.  3.  (m)  Sect.  2. 

Massachusetts,  Vermont,  Connecticut,  South  of  a  decedent  for  a  trespass  de  bonis  asporta- 
Carolina,  and  Tennessee  ;  Kennerly,  Exrx.,  v.  tis,  and  Lattimore  et  al.,  Exrs.,  v.  Simmons, 
Wilson,  1  Mary.  R.  102  ;  Wilbur,  Exr.,  v.  13  Serg.  &.  Raw.  R.  184,  deciding  that  no 
Gilmore,  21  Pick.  R.  250  ;  Boynton  et  al.  v.  action  will  survive  to  the  representatives  for 
Rees,  9  Id.  528  ;  Goodridge-y.  Rodgers,  Admr.,  an  injury  to  the  freehold. 
22  Id.  495  ;  Stanley,  Admr.,  v.  Gaylord,  10  That  tort  for  injuries  to  real  property,  will 
Metcf.  R.  82 ;  Northampton  Paper  Mills  v.  survive  against  the  representatives  of  the 
Ames  et  al.,  6  Id.  422;  Griswold,  Admr.,  v.  wrongdoer,  has  been  held  in  Kentucky;  Ken- 
Brown  etal.,  1  Day's  R.  180  ;  Bellow's  Admr.  ney  et  al.  v.  McAfiel's  Exrx  ,  1  Lit.  R.  169. 
V.  Allen,  22  Vt.  R.  108;  Admr.  of  Barrett  So  also,  perhaps,  in  North  Carolina  and  Ver- 
■0.  Copeland,  20  Id  247  ;  Chalk  v.  McAlly,  mont ;  Dobbs  v.  Gullidge,  3  &  4  Dev.  &  Bat. 
10  Rich.  L.  R.  92;  Winters  v.  McGhee,  3  R.  68 ;  McPherson  v.  Leguire,  3  Dev.  R.  153  ; 
Sneed's  R.  128.  The  authority  of  Maine,  Arnold  v.  Exrx.  of  Lanier,  1  Caro.  L.  Reg. 
California,  Illinois,  and  perhaps  of  Virginia.  529  ;  Burgess  v.  Gates,  Exrx.,  20  Vt.  R.  326. 
is  in  the  negative  ;  Hill,  Admr.,  v.  Penny,  17  In  New  York  and  New  .lersey  this  action  may 
Maine  R.  410  ;  O'Conner  v.  Corbit,  3  Cal.  R.  also  be  maintained,  provided  a  benefit  has  ac- 
370  ;  Readt;.  Peoria  AOquawkaR.  R.  Co.,  18  crued  to  the  estate  of  the  wrongdoer  ;  2  Kt. 
111.  R.  403;  Harrist^.Cren.shaw,3Rand.  11.14;  Com.  416;  Cooper  «.  Crane.,  4  Halst.  R.  177; 
though  in  the  latter  State  it  has  been  held  that  but  it  has  been  held  in  New  York,  that  tres- 
on  the  death  of  a  plaintiff,  in  proceedings  to  pass  for  mesne  profits  will  not  survive  against 
recover  damages  to  land,  caused  by  the  erec-  the  wrongdoer's  personal  representative  ; 
tion  of  a  dam,  under  a  statute,  the  proceed-  Campbell  v.  Renwick,  2  Bradf.  R.  80.  In 
ings  may  be  revived  by  the  administrator,  Texas,  the  administration  of  the  whole  e.s- 
Upper  Appomattox  Co.  v.  Harding's,  11  tate,  both  real  and  personal,  is  by  law  cast 
Gratt.  R.  1  ;  and  as  to  the  law  of  California,  upon  the  administrator,  who  can  therefore 
see  Haight  v.  Green,  19  Cal.  R.  113.  bring  and  maintain  suits  for  lands  belonging 
In  Pennsylvania,  the  authorities  are  con-  to  his  intestate,  Graham  v.  Vining,  Admr.,  2 
flicling;  Keito,  Admr.,  V.Boyd,  16  Serg. <fe  Raw.  Texas  R.  433. 
R.  300,  giving  an  action  to  the  representatives 


128  OF   CHOSES   IN   ACTION. 

deceased,  in  such  shares  as  the  jury  shall  direct.(7?)  Previously  to 
this  statute,  a  man  who  had  hceu  maimed  hy  another  could  re- 
cover compensation  for  the  injury ;  but  if  he  died  of  his  wound, 
his  family  could  obtain  no  recompense  for  the  loss  of  a  life  which 
might  have  been  their  only  dependence.^  And  even  now,  when 
the  death  of  a  person  is  not  caused,  no  action  can  be  brought  by 
his  executor  or  administrator  for  any  injury  wliich  afiected  him 
personally,  if  it  did  not  touch  his '  property.  Thus  it  has  been 
lield,  that  an  executor  or  administrator  cannot  have  an  action  for 
a  breach  of  promise  of  marriage  with  the  deceased,  where  no 
special  damage  can  be  stated  to  have  accrued  to  her  personal  es- 
t4ite.(o) 

jSTot  only  the  death  of  the  injured  party,  but  also  that  of  the 

^wroncfdoer,  formerly  put   an  end  to  every  action  which 

*-       -•    arose  from  a  tort  or  wrong ;  and  this  was  the  case  up  to  a 

very  recent  period  ;  although  if  the  executor  or  administrator  had 

profited  by  the  wTong  done,  the  injured  party  was  able  to  recover 

(«)  Sects.  2,  5.  This  act  is  a  specimen  of  the  common  absurdity  of  modern  acts  of  Par- 
liament, in  introducing  an  interpretation  clause  in  one  section  just  to  vary  the  meaning  of 
another.  It  enacts,  in  one  section,  that  the  action  shall  be  for  the  benefit  of  the  wife,  hus- 
band, parent,  and  child;  and,  in  another  section,  that  the  word  "parent"  shall  include 
father  and  mother,  and  grandfather  and  grandmother,  and  stepfather  and  stepmother  ;  and 
the  word  "child"  shall  include  son  and  daughter,  and  grandson  and  granddaughter,  and 
stepson  and  stepdaughter.  Now,  the  words  "parent"  and  "child"  occur  only  in  the  one 
place  just  mentioned,  besides  this  interpretation  clause.  Why  not,  therefore,  say  at  once 
what  is  really  intended  ? 

(o)  Chamberlain  v.  Williamson,  2  Mau.  &  Sel.  408,  415. 


1  An  act  of  the  legislature  of  Pennsylva-  deceased,  or  if  there  be  no  widow,  the  per- 

nia,  of  the  15th  April,  1851,  provides,  that  no  sonal  representatives  may  maintain  an  action 

action  for  injuries  to  the  person,  happening  and  recover  damages  for  the  death  thus  occa- 

tbrough  negligence,  default,  or  violence,  shall  sioned."     Purdon's  Dig.  (1861)286. 
abate  by  the  death  of  the  plaintiff ;  the  words        A  statute  ofMassachusetts  (1842,  c.  89, §  1), 

of  the  act  are  :  "  No  action  hereafter  brought,  is  somewhat  similar,  providing  that  actions 

to  recover  damages  for  injuries  to  the  person,  on  the  case  for  damages  to  the  per.'^on,   shall 

by  negligence  or  default,  shall  abate  by  reas-  survive  ;  but  the  courts  of  that  State  have 

on  of  the  death  of  the  plaintiff;    but  the  per-  decided,  that  the  personal  damages  mentioned 

sonal  representatives  of  the  deceased  may  be  in  this  statute,  mean  only  physical  injuries  ; 

sbustituted  as  plaintiff,  and  prosecute  the  suit  Smith  v.  Sherman,  4  Cush.   R.  408  ;  Walters 

ot  final  judgment  and  satisfaction."  v.  Nettleton,   5   Cush.    R.    644;  Nettleton  «. 

"Whenever  death  shall  be  occasioned  by  Dinehart,   5   Cush.    R.   543.     Laws  of  a  like 

unlawful  violence  or  negligence,  and  no  suit  character  are   also  existing  in  other  of  the 

for  damages  be  brought  by  the  party  injured  States,    most   of  them   being  comparatively 

durino-  his  or  her  life,  the  widow  of  any  such  recent  enactments. 


OF   ACTIONS   EX   DELICTO.  129 

from  liim  the  money  or  goods  lie  had  thus  gained.(p)^  But  by  a 
modern  statute(5')  an  action  may  now  be  maintained  against  the 
executors  or  administrators  of  any  person  deceased,  for  any 
wrong  committed  by  him  within  six  calendar  months  before  his 
death  against  another  person,  in  respect  of  his  property  real  or 
personal ;  so  as  such  action  be  brought  within  six  calendar  months 
after  such  executors  or  administrators  shall  have  taken  upon 
themselves  the  administration  of  the  estate  and  effects  of  such 
person.*  And  the  damages  to  be  recovered  in  such  action  are  to 
be  payable  in  the  hke  order  of  administration  as  the  simple  con- 
tract debts  of  such  person.  The  remedy  afforded  by  this  statute 
does  not  preclude  such  action  as  might  have  previously  been 
brought  against  the  executor  or  administrator,  (r) 

There  is  one  peculiar  action  founded  on  tort,  to  which,  from  the 
nature  of  the  case,  the  deceased  himself  cannot  be  liable,  but 
which  is  maintainable  by  the  common  law  against  his  executors 
or  administrators.  This  is  the  action  for  dilapidations  of  the 
houses  or  buildings  on  a  benefice ;  and  it  is  brought  by  the  new 
incumbent,  whether  of  a  rectory,  \dcarage,  or  perpetual  curacy,(5) 
against  the  executors  or  administrators  of  his  predecessor.  This 
action  cannot  be  said  to  be  an  exception  to  the  rule  actio  personalis 
moritur  cum  persona,  for  the  deceased  is  not  liable  during  his  life- 
time ;  the  plaintiff  must  be  the  succeeding  incumbent ;  and  an 
action  cannot  be  said  to  die  *which  never  had  or  could 
have  any  existence.(<)  However,  in  the  case  of  resignation  ^  -■ 
or  exchaoge,  the  preceding  incumbent  is  himself  liable  for 
dilapidatiou8.(M)  In  estimating  the  damages  to  be  recovered  in 
this  action,  the  rule  is  as  follows:  The  incumbent  is  bound  to 
maintain  the  parsonage,  farm  buildings,  and  chancel  in  good  and 
substantial  repair,  restoring  and  rebuilding  when  necessary, 
according  to  the  original  form,  without  addition  or  modern  im- 

(p)  Powell  V.  Rees,  7  Ad.  &  El.  426,  E.  C.  L.  R.  vol.  34. 

(y)  Stat.  .S  &  4  Will.  IV,  c.  42,  s.  2. 

(r)   Powell  V.  Ree.s,  ubi  supra. 

(s)  Mason  v.  Lambert,  12  Q.  B.  795,  E.  C.  L.  R.  vol.  64. 

(t)   Sellers  v.  Lawrence,  Willes,  421. 

(m)  Downes  v.  Craig,  9  Mee.  <t  Wt'ls.  166. 

1  See  ante,  p.  62,  note  i  *  See  ante,  p.  62,  note  * 

9 


130  OF    CHOSES   IN    ACTION. 

provement;  and  he  is  not  bound  to  supply  or  maintain  anything 
in  the  nature  of  ornament,  to  which  painting  (unless  necessary  to 
preserve  exposed  timbers  from  decay)  and  whitewashing  and 
papering  beloug.(x)  And  no  damages  can  be  recovered  on 
account  of  neglect  to  cultivate  the  glebe  lands  in  a  husbandlike 
mauner.(j/)  But  if  the  incumbent  commit  any  act  of  waste,  such 
as  could  not  be  committed  by  any  ordinary  tenant  for  \\fe,{z)  his 
executors  will  be  liable  in  an  action  for  dilapidations, (a)  and  he 
himself  may  be  restrained  by  an  injunction  out  of  the  Court  of 
Chancery.(6)^  Claims  for  dilapidations  have  this  peculiarity,  that 
they  are  not  to  be  satisfied  by  the  executor  until  after  payment 
of  all  the  debts  of  the  testator,  including  those  merely  by  simple 
contract,  (c) 


[^6Q-]  *CHAPTER    II. 

OF    CONTRACTS. 

Personal  actions,  we  have  observed,(a)  may  be  brought  not 
only  on  account  of  the  infliction  of  a  wrong,  but  also  to  recover 
pecuniary  damages  for  the  non-performance  of  a  contract,  or  to 
procure  the  payment  of  money  due,  if  the  payment  of  a  specific 
sum  be  the  subject  of  the  contract.  As  the  pa^-ment  of  money 
is  the  law's  ultimate  remedy  in  personal  actions,  an  action  for  a 

ix)  Wise  V.  Metcalf,  10  Barn.  &  Cress.  299,  E.  C.  L.  R.  vol.  21. 

(y)   Bird  V.  Ralph,  4  Barn.  &  Adol.  826,  E.  C.  L.  R.  vol.  24. 

(z)   See  Principles  of  the  Law  of  Real  Property,  p.  23,  4th,  5th  &  6th  eds. 

(a)  Huntley  v.  Russell,  13  Q.  B.  572,  E.  C.  L.  R.  vol.  66. 

(b)  The  Duke  of  Marlborough  v.  St.  John,   5  De  Gex  &  Sm.  174. 

(c)  Bryan  v.  Clay,  1  E.  &  Black.  38,  E.  C.  L.  R.  vol.  72.  But  as  to  equitable  assets,  see 
Bissett  V.  Burgess,  23  Beav.  278. 

(a)  Ante,  p.  4. 


1  By  the  laws  of  Pennsylvania,  a  writ  of  the  personal  estate  of  said  decedent  is  not 
estrepement,  to  stay  waste,  may  be  issued  on  suflScient  to  pay  his  debts,  and  that  the 
the  application  of  a  creditor,  or  against  the  person  in  possession  of  the  freehold  has  coin- 
tenant,  or  person  in  possession  of  a  decedent  mitted  waste,  or  allowed  it  to  be  done  by 
debtor's  real  estate,  upon  the  allegation  that  others;  Purd.  Dig.  (1861),  p    1008. 


OF   CONTRACTS.  131 

given  debt  will  be  effectually  satisfied  by  a  judgment  that  the 
plaintiff  do  recover  his  debt;  and  this  is  the  judgment  accord- 
ingly given  in  an  action  of  debt,  which  lies  for  the  recovery  of  a 
specific  sum  due  from  the  defendant  to  the  plaintifl'.(6)  But 
when  no  specific  sum  is  claimed,  the  action  can  only,  in  the  law 
phrase,  sound  in  damages;  and  the  amount  of  the  damages  to 
be  recovered  must,  until  recently,  have  been  assessed  by  a  jury 
according  to  the  injury  sustained. (c)  But  the  Common  Law 
Procedure  Act,  1852,  now  provides,  that  in  actions  in  which  it 
shall  appear  to  the  court  or  a  judge  that  the  amount  of  damages 
sought  to  be  recovered  by  the  plaintiff"  is  substantially  a  matter 
of  calculation,  the  court  or  a  judge  may  direct  that  the  amount 
for  which  final  judgment  is  to  be  signed  shall  be  ascertained  by 
one  of  the  masters  of  the  court  ;(o?)'  and  further,  that  in  all  actions 
where  the  plaiiltift'  recovers  a  sum  of  money,  the  amount  to  which 
he  is  entitled  may  be  awarded  to  him  by  the  judgment  generally, 
witliout  any  distinction  being  therein  made  as  to  whether  such 
sum  is  recovered  by  way  of  a  debt  or  damages. (e)  It  is,  however, 
competent  to  the  ^parties  to  a  contract  to  agree  between  p.^^^-, 
themselves,  that,  in  the  event  of  a  breach  by  either  party,  ^  -' 
a  given  sum  shall  be  recovered  from  him  by  the  other  as  stipulated 
or  liquidated  damages  ;  and  in  this  case  the  whole  of  the  sum  thus 
agreed  on  may,  on  a  breach  of  the  contract,  be  recovered  from 
the  defaulter.(/)  The  sum  so  agreed  on  is  not  properly  called 
a  penalty ;  for,  as  we  shall  see  hereafter  when  speaking  of  bonds, 
the  law  regards  a  penalty  as  a  security  only  for  the  damage 
actually  sustained ;  although  the  use  of  the  word  penalty  will  not 
prevent  the  whole  sum  from  being  recovered,  if  this  be  clearly 
the  intention. (^)  But  where  a  sum  of  money  is  stipulated  to  be 
recovered  as  liquidated  damages  in  case  of  the  breach  of  an 
agreement  to  do  several  acts,   and  such  sum  will,  in  case  of 

{h)  Stephen  on  Pleading,  116.  (d)  Stat.  15  &  16  Vict.  c.  76,  s.  94. 

(c)  Ibid.  p.  117.  («)   Ibid,  a.  95. 

(/)  Reilly  V.  Jones,  1  Bing.  .302,  E.  C.  L.  R.  vol.  8  ;  S.  C.  8  Moore,  244  ;  Sugd.  Vend. 
A  Pur.  221,  nth  ed.  :  Leighton  v.  Wales,  2  Mee.  &  WeKs.  545  ;  Price  v.  Green,  16  M.  &  W. 
546,  .354  ;  G.-iIsworlhy  v.  Strutt,  1  Exch.  Rep.  659  ;  Atkyns  v.  Kinnier,  4  Exch.  Rep.  776. 

(g)  Saintor  v.  Ferguson,  7  C.  B.  716,  E.  C.  L.  R.  vol.  62  ;  Sparrow  v.  Pari.s,  7  II.  &  N . 
594. 


'  A   rule   of  court   somwehat    resembling    of  the  Commonwealth  of  Penn.sylvania. 
this,  has  been  adopted  by  the  Supreme  Court 


132 


OF   CHOSES    IN   ACTION. 


breaches  of  the  agreement,  be  in  some  instances  too  large  and  in 
others  too  small  a  compensation  for  the  injury  occasioned,  such 
sum  will  not  be  allowed  to  be  recovered  in  case  of  any  breach, 
but  damages  only,  proportioned  to  the  actual  injury  which  the 
breach  has  occasioned. (A)  In  such  a  case,  if  the  parties  wish  to 
bind  themselves  to  pay  liquidated  damages,  they  must  contract 
in  clear  and  express  terms,  that  for  the  breach  of  each  and  every 
stipulation  contained  in  the  agreement  a  sum  certain  is  to  be 
paid;  and  in  that  case,  although  the  stipulations  may  be  of 
various  degrees  of  importance,  the  parties  will  be  held  to  their 
con  tract,  (/j^ 

{h)  Kemble  v.  Farren,  6  Bing.  141,  E.  C.  L.  R.  vol.  19  ;  S.  C.  3  Moo.  &  Pay.  425;  Davies 
V.  Penton,  6  Bar.  &  Cress.  216,  22.3,  E.  C.  L.  R,  vol.  11  ;  S.  C.  9  Dowl.  k  Ry.  369  ;  Horner 
V.  FHntoflF,  9  Mee.  &  Wels.  678,  681  ;  Reindel  v.  Schell,  4  Scott,  N.  S.  97,  E.  C.  L.  R.  vol. 
93  ;   Belts  v.  Burch,  4  H.  &  N.  506. 

(t)  Per  Parke,  B.,  9  Mee.  &  Wels.  680.  See  Atkyns  v.  Kinnier,  4  Exch.  Rep.  776  ; 
Mercer  v.  Irving,  1  E.  B.  &  E.  563,  E.  C.  L.  R.  vol.  96. 


1  In  interpreting  a  contract,  which  pro- 
vides, that  upon  its  non-fulfilment,  a  sum 
agreed  upon  shall  be  paid  by  the  defaulting 
party,  it  is  often  a  matter  of  great  diflSculty, 
to  determine  whether  the  sum  so  specified  to 
be  paid,  is  a  penalty,  or  liquidated  damages. 
This  difficulty  is  not  lessened,  by  the  fact, 
that  the  use  of  the  words  "  penalty  "  or  "li- 
quidated damages,""  aflTords  no  sufiicient  aid 
in  arriving  at  a  conclusion  ;  it  having  been 
frequently  decided,  where  the  parties  have 
called  the  specific  sum  "  liquidated  damages," 
it  is,  nevertheless,  a"  penalty,  "and  ficet^ersa/ 
the  only  safe  rule  of  interpretation,  in  this 
country  as  in  England,  is  based  upon  the  in- 
quiry, What  is  the  intention  of  the  parties  to 
the  contract  ?  and  this  question  must  be  an- 
swered by  taking  a  comprehensive  view  of 
the  whole  contract,  and  not  by  confining  the 
examination  to  any  isolated  word  or  sentence  : 
Watt's  Exrs.  v.  Sheppard,  2  Alabama  R. 
425  ;  Carpenter  et  al.  v.  Lockhart,  1  Carter's 
Ind.  R.  435;  Heard  v.  Bowers  et  al.,  23 
Pick.  R.  465  ;  Shute  v.  Taylor,  5  Metcf.  R. 
51  ;  Brown  f.  Bellows,  4  Pick.  R.  179  ;  Beale 
V.  Hayes,  5  Sandf.  Superior  C.  R.  641;  Hosmer 
V.  True, 19  Barb.  R.106  ;  Foley  v.  McKeegan, 
4  Iowa  R.  1  ;  Streeperv.  AVilliams,  48  Pa.  St. 
R.  450;  Shreevev.  Brereton,  Leg.  Intel.  Mar. 
2,  1866.     The  tendency,  however,  of  the  de- 


cisions of  the  courts,  is  towards  determining 
the  sum  specified  in  the  contract,  to  be  a  pen- 
alty :  Shute  V.  Taylor,  5  Metcf.  R.  51  ;  Moore 
et  al.  V.  Platte  Co.,  8  Mo.  R.  467;  Cheddick's 
Exr.  V.  Marsh,  1  Zabriskie's  R.  463  ;  Tay- 
loe  V.  Sandiford,  7  Wheat.  R.  13  ;  and  conse- 
quently, where  the  word  "  penalty  "  is  used, 
it  must  clearly  appear  that  the  parties  intend 
it  should  be  liquidated  damages,  or  it  will  be 
interpreted  to  be  a  penalty. 

In  2d  Greenleaf's  Evidence,  ^§  258,  259, 
certain  rules  will  be  found  to  ascertain  the 
intention  of  the  parties  to  a  contract,  as  to 
this  point. 

Thus  it  has  been  held  to  be  a  penalty, 
First,  "Where  the  parties  in  the  agreement 
have  expressly  declared  the  sum  to  be  intend- 
ed as  a  forfeiture,  or  penalty,  and  no  other 
intent  is  to  be  collected  from  the  instrument ;" 
Stearns  v.  Barrett,  1  Pick.  R.  443  ;  Brown 
V.  Bellows,  4  Id.  179;  Abrams  v.  Kounts  et 
al.,  4  Ohio  R.  214  ;  Robeson  et  al.,  Exrs.,  v. 
Whitesides,  16  Serg.  &  Raw.  R.  320  ;  Tayloe 
V.  Sandiford,  7  Wheat.  R.  13. 

Second.  "  Where  it  is  doubtful,  whether 
it  was  intended  as  a  penalty,  or  not ;  and  a 
certain  damage,  or  debt,  less  than  the  pen- 
alty, is  made  payable,  on  the  face  of  the  in- 
strument ;"  Dakin  et  al.  v.  Williams  et  al., 
17  Wend.  R.  447,  S.  C.  22  Id.  201  ;  Baird  v. 


or    CONTRACTS. 


133 


*So  mueli  then  for  the  legal  remedies  for  a  breach  of 
contract.     Let  us  now  inquire  more  particularly  of  what 


[*68] 


Tolliver  et  al.,  6  Hump.  R.  186;  Waller  t-. 
Long,  6  Munf.  R.  71  ;  Watt's  Exrs.  v.  Shep- 
pard,  2  Ala.  R.  425  ;  Number  of  cases  Ala. 
R.  209;  Plummer  v.  McKean,  2  Stew.  Ala.  R. 
423  ;  Hamilton  v.  Overton  etal.,  6  Blaokf.  R. 
206  ;  Taul  V.  Everett,  4  J.  J.  Marsh.  R.  10  ; 
Churchwardens  et  al.  v.  Peytavin,  2Condens. 
R.  S.  C.  La.  493  ;  Reynolds  v.  Tarborough,  7 
La.  R.  193  ;  Baxter  etal.,  Exrs.,  v.  Wales,  12 
Mas.s.  R.  365 ;  Beale  v.  Hays,  5  Sandf.  Super. 
C.  R.  641  ;  Brockaway -t'.  Clark,  6  OhioR.  50  ; 
Allen  V.  Brazier  etal. ,2  Bailey's  R.  293;  Kel- 
logg V.  Curtis,  Admr.,  9  Pick.  R.  5.34;  United 
States  V.  Gurney  et  al.,  4  Cranch's  R.  333. 
But  see  to  the  contrary,  Jordan  v.  Lewis,  2 
Stew.  R.  426,  and  Cutler  v.  How,  8  Mass.  R. 
257 ;  Gower  v.  Carter,  3  Clarke's  R.  244. 
Third.  "Where  the  agreement  was  evident- 
ly made  for  the  attainment  of  another  object, 
to  which  the  sum  specified  is  wkol/y  collate- 
ral;''- Broad  well  et  al. ,  to  the  use.  Ac,  v. 
BroadweJl,  1  Oilman's  111.  R.  600  ;  Nash 
V.  Hermosilla,  9  Cal.  R.  584  ;  Burrage  v. 
Crump,  3  Jones's  L.  R.  330.  Ii  has  been 
so  held  where  the  principal  contract  was  to 
convey  a  tract  of  land  ;  Dyer  v.  Dorsey 
et  al.,  1  Gill  &  Johns.  R.  44  ;  Shute  v. 
Taylor,  5  Metcf.  R.  51  ;  Lindsay  v.  Anes- 
ley,  6  Ired.  L.  R.  186  ;  Dennis  v.  Cummins, 
3  Johns.  Cas.  297 ;  or,  not  to  trade  in  a 
specified  place  ;  Perkins  v.  Lyman,  II  Mass. 
R.  76  ;  or,  to  let  the  plaintiff  have  the  use  of 
a  building  ;  Merrill  v.  Merrill,  15  Mass.  R. 
488  ;  Bearden  v.  Smith,  11  Rich.  L.  R.  554  ; 
ortosubmit  to  an  award  ;  Hoag  v.  McGinnis, 
22  Wend.  R.  163;  Whitcomb  v.  Preston,  13  Vt. 
R.  53. 

Fourth.  Where  the  agreement  contains  sev- 
eral matters  of  different  degrees  of  importance, 
and  yet  the  sum  named  "  is  payable  for  the 
breach  of  any,  even  the  least;"  Watt's  Exrs. 
V.  Sheppard,  2  Ala.  R.  425;  Carpenter  et 
nl.  V.  Lockhart,  1  Cart.  Ind.  R.  435  ;  Ham- 
ilton V.  Overton  et  al.,  6  Blackf.  R.  206; 
McNair  v.  Thompcon,  1  Condens.  R.  S.  C. 
La.  413  ;  Moore  et  al.  v.  Platte  County,  8 
Mo.  R.  467;  Gower  v.  Raltmar.sh,  11  Id. 
271  ;  Chaddick'sExr.  v.  Marsh,  1  Zabriskie's 
K.  463  ;  Bagley  v.  Peddie,   6   Sandf.  Super. 


C.  R.  192;  Beale  v.  Hayes,  Id.  641  ;  Carry 
V.  Sarer,  7  Pa.  St.  R.  470  ;  Allen  v.  Brazier 
et  al.,  2  Bailey's  R.  293  ;  Tayloe  v.  Sandi- 
ford,  7  Wheat.  R.  13  ;  Danville  Bridge  Co.  v. 
Pomroy  et  al.,  15  Pa.  St.  R.  181  ;  which  last 
case  is  similar  in  principal  to  Faunce  f.  Burke 
et  al.,  16  Pa.  St.  R.  469,  subsequently  de- 
cided contrariwise  ;  Niver  v.  Rossman,  18 
Barb.  R.  50  ;  Berry  v.  Wisdom,  3  0.  R.  (N. 
S.)  241  ;  Clement  v.  Cash,  21  N.  Y.  R.  253  ; 
Basye  v.  Ambrose,  28  Mo.  R.  39  ;  Thor- 
oughgood  V.  Walker,  2  Jones's  L.  R.  15  ; 
Hammer  v.  Bradenbach,  31  Misso.  R.  49  ; 
Daily  V.  Litchfield,  10  Mich.  R.  29. 

Fifth.  "Where  the  contract  is  not  under 
seal,  and  the  damages  are  capable  of  being  ' 
certainly  known  and  estimated  ;  and  though 
the  parties  have  expressly  declared  the  sum  to 
be  as  liquidated  damages  ;"  Watt's  Exrs.  v. 
Sheppard,  2  Ala.  R.  425  ;  Spencer  v.  Til- 
den  et  al.,  5  Cow.  R.  144;  Graham  v.  Bick- 
ham,  4.  Dal.  R.  149. 

"On  the  other  hand,  it  will  be  inferred 
that  the  parties  intended  the  sum  as  liquidated 
damages :  First.  Where  the  damages  are 
uncertain,  and  are  7iot  capable  of  being  ascer- 
tained, by  any  satisfactory  and  known  rule  ; 
whether  the  uncertanty  lies  in  the  nature  of 
the  subject  itself,  or  in  the  particular  circum- 
stances of  the  case  ;"  Watt's  Exrs.  v.  Shep- 
pard, 2  Ala.  R.  425  ;  Hamilton  v.  Overton  et 
al.,  1  Carter's  Ind.  R.  484 ;  Gammon  v. 
Howe,  14  Maine  R.  260  ;  Bright  w.  Rowland, 
3  Howard's  Mo.  R.  398  ;  Dakin  et  al.  v. 
Williams  et  al. ,  17  Wend.  R.  447,  S.  C.  22  Id. 
201  ;  Hoag  v.  McGinnis,  Id.  163;  Bagley  v. 
Peddie,  16  N.  Y.  R.  469.  It  has  been  decided, 
that  the  sum  specified,  was  liquidated  dam- 
ages, and  not  a  penalty,  where  the  agreement 
was  not  to  carry  on  a  trade  in  a  .specified 
place  ;  Miller  v.  Elliott,  1  Cart.  Ind.  R. 
484  ;  Peirce  v.  Fuller,  8  Mass.  R.  223  ; 
Noble's  Admx.  v.  Bates,7Cow.  R.  307  ;  Smith 
V.  Smith,  4  Wend.  R.  468;  iMott  v.  Mott,  11 
Barb.  Suprem.  C.  R.  127  ;  Grasselli  v.  Low- 
den,  11  0.  R.  (N.  S.)  349;  Duffy  v.  Shockey, 
11  Ind.  R.  70;  Jaquith  v.  Hudson,  5  Mich 
R.  123;  so,  where  it  was  agreed  to  pay  a  cer- 
tain sum,  for  the  delay  of  each  week,  month, 


134 


OF   CUOSES   IN    ACTION. 


a  contract  itself  consists.  A  contract  then,  as  defined  by  Black- 
8tone,(Z;)  is  "an  agreement  upon  sufficient  consideration  to  do  or 
not  to  do  a  particular  thing."  This  agreement  may  be  either 
express  or  implied ;  for  the  law  always  implies  a  promise  to  do 
that  which  a  person  is  legally  liable  to  perform,  and  the  action 
of  assumpsit  on  promises  is  constantly  maintained  for  damages 
for  the  breach  of  such  an  im})lied  contract.(/)  Thus  a  person 
who  takes  the  goods  of  a  ti'adesman  is  liable  in  assumpsit  for  their 
market  value  :  for,  as  he  took  the  goods,  the  law  will  imply  for 
him  a  promise  to  pay  for  them.  So  a  person  who  employs 
another  to  work  for  him  impliedly  contracts  to  give  him  reason- 
able remuneration ;  and  a  man  who  borrows  money  impliedly 
promises  to  repay  it.  And  in  all  these  cases  the  plaintift',  until 
recently,  plainly  stated  that  the  defendant  promised  the  plaintifl' 
to  pay  him  the  money  on  request,  and  that  the  defendant  had 


(k)  2  Bla.  Com.  442. 


(/)   Stephen  on  Pleading,  18. 


Ac,  in  finishing  a  work,  stipulated  to  be 
completed  at  a  certain  time  ;  Curtis  et  al.  v. 
Brewer,  17  Pick.  R.  513  ;  Worrell  v.  Mc- 
Clinaghan  et  ux.,  5  Strobh.  L.  R.  115  ;  Watt's 
Exrs.  V.  Sheppard,  2  Ala.  R.  425  ;  and  by  the 
English  authorities  it  has  been  held,  that 
where  it  is  agreed  that  a  certain  specified  sum 
shall  be  paid  in  case  any  act  amounting  to 
waste  shall  be  committed, it  is  astipulation  for 
liquidated  damages  ;  Aylett  v.  Dodd,  2  Atk. 
R.  239  ;  Woodward  v.  Gyles,  2  Vern.  R.  119  ; 
Rolfs  V.  Peterson,  2  Bro.  P.  C.  436. 

Second.  "Where  from  the  nature  of  the 
case,  and  the  tenor  of  the  agreement,  it  is  ap- 
parent, that  the  damages  have  already  been 
the  subject  of  actual  and  fair  calculation  and 
adjustment  between  the  parties;"'  Alexander 
V.  Troutman,  1  Kelly's  R.  472  ;  McNair  v. 
Thompson,  1  Condens.  R.  S.  C.  La.  413  ; 
McGlorin  v.  Henderson  et  al.,  6  La.  R.  720  ; 
Price  et  al.  v.  Tucker,  5  La.  Ann.  R.  514  ; 
Graham  v.  Bickham,  4  Dal.  R.  149  ;  Pierce 
V.  Jung,  10  Wis.^R.  30  ;  Dunlop  v.  Gregory, 
ION  Y.  R.  241.  The  cases  exemplifying  this 
principle  are,  where  the  agreement  was  to  pay 
a  sum  of  money,  in  goods,  at  a  certain  price  ; 
Braham  et  al.  v.  Le  Roy  Pope  etal.,  1  Stew- 
(Ala.)  R.  135;  Brooks  v.  Hubbard,  3  Conn. 
R.  58  ;  or,    to   sell   pergonal   property,   or  to 


convey  land,  and  in  default  thereof,  to  pay  a 
specified  sum  ;  Tingley  v.  Cutler,  7  Conn.  R. 
291  ;  Allen  v.  Brazier,  2  Bailey's  R.  293  ; 
Heard  v.  Bowers  et  al.,  23  Pick.  R.  455  ; 
Hodges's  Exr.  v.  King,  7  Metcf.  R.  587 ; 
Cartwright  etal.  v.  Gardener,  5  Cush.  R.  273  ; 
Chamberlain  v.  Bagley,  11  N.  H.  R.  235  ; 
Mead  v.  Wheeler,  13  Id.  351  ;  Hasbrouck  v. 
Tappen,  15  Johns.  R.  203  ;  Stosson  v.  Beale, 
7  Id.  72;  Knapp  v.  Maltby,  13  Wend.  R.  587  ; 
Gray  t'.  Crosby,  18  Johns.  R.  219;  Pearson 
V.  Williams's  Admrs.,  24  Wend.  R.  244  S.  C. 

26  Id.  630  ;  Sawyer  v.  Mclntire,  18   Vt.  R. 

27  ;  Mundy  v.  Culver,  18  Barb.  R.  3.36  :  Wil- 
liams V.  Green,  14  Ark.  R.  315  ;  Fisk  v. 
Fowler,  10  Cal.  R.  512  ;  Streepert;.  Williams, 
48  Pa.  St.  R.  450  ;  or  that  a  security  should 
become  void,  if  put  in  suit  before  the  time 
limited  in  a  letter  of  license  granted  to  the 
debtor  ;  White  v.  Tingley,  4  Mass.  R.  433  ; 
or,  to  pay  a  specified  sum  of  money,  if  a  cer- 
tain receipt  did  not  contain  a  true  and  proper 
method  for  making  improved  incorruptible 
teeth  ;  Brewster  v.  Edgerly,  13  N.  H.  R.  275  ; 
or  to  pay  double  rent,  for  such  time  as  a  lessee 
held  possession  beyond  the  expiration  of  his 
term;  Walker   v.    Engier,  30  Mo.  R.  130. 

See  also.  Chase  v.  Allen,  13  Gray's  R.  42  ; 
Dermott  v.  Wallack,  1  Wallace's  U.  S,  R.  61. 


OF   CONTRACTS.  135 

disregarded  his  promise,  and  liad  not  paid  the  said  moneys  or 
any  part  thereof.  But  the  Common  Law  Procedure  Act,  1852, 
now  requires  that  all  statements  of  this  kind  shall  be  omitted. (to) 

Express  contracts  are  either  by  parol,  or  word  of  mouth,  which 
are  called  siynple  contracts,  or  by  deed  under  seal,  which  are  called 
special  contracts  ;{ii)  although  simple  contracts  may,  and  often 
must  at  the  present  daj^,  be  evidenced  by  writing.  Let  us  con- 
sider first  mere  parol  or  simple  contracts.  A  parol  contract  then 
is  an  agreement  by  word  of  mouth,  upon  sufficient  consideration, 
to  do  or  not  to  do  a  particular  thing.  According  to  the  law  of 
England  a  consideration  is  an  essential  ingredient  in  every  contract: 
a  promise  without  *a  consideration  is  regarded  as  nudum  [-^^q-, 
j9adz/m,  and  no  recompense  can  be  recovered  for  its  breach,(o)  ^  -" 
neither  will  its  performance  be  enforced  in  a  court  of  equity. (_p) 
Thus  if  a  man  promise  to  give  me  100/.  without  any  consideration, 
he  is  not  bound  to  perform  his  promise,  and  I  am  without  remedy 
if  he  should  break  his  word.  So  even  if  I  should  have  done  him 
any  service,  his  subsequent  promise  to  pay  me  money,  or  other- 
wise benefit  me,  for  a  consideration  already  executed  on  my  part, 
will  not  be  binding,  unless  I  should  have  done  him  the  service  at 
his  request,  in  which  case  the  promise  will  relate  back  to  the 
request,(g')  or  unless  a  request  can  be  implied  from  a  subsequent 
allowance  of  the  service,  or  from  other  circumstances  ;(r)  and  if 
the  service  rendered  be  of  such  a  nature  that  the  law  will  imply 
a  promise  in  respect  of  it,  any  subsequent  express  promise  dif- 
ferent from  that  which  the  law  will  imply  will  be  void,  as  nudum 
pacium.(s)  And  if  the  service,  or  any  part  of  it,  has  been  illegal, 
from  being  contrary  to  the  common  law  or  to  any  statute,  such 
illegal  consideration  will  not  support  a  promise.  Thus  a  promise 
made  in  consideration  that  the  other  party  had  published  a  libel 

(m)  Stat.  15  &  16  Vict.  c.  76,  s.  49. 
■  (w)  Rann  v.  Hughes,  7  T.  R.  351,  n. 

(o)  Doctor  &  Student,  dial.  2,  c.  24  ;  2  Bla.  Com.  445. 

(p)   )  Fonb.  Eq.  335  et  seq.;  Dipple  v.  Corles,  11  Hare,  183. 

(q)  Hunt  V.  Bate,  Dyer,  272  a  ;  Lampleigh  v.  Brathwait,  Hob.  105,  1  Smith's  Leading 
Cases,  67  ;  Powle  v.  Gunn,  4  N.  C.  445,  448,  E.  C.  L.  R.  vol.  13  ;  Eastwood  v.  Kenyon,  11 
Ad.  A  Ell.  438,  451,  E.  C.  L.  R.  vol.  39  ;  S.  C.  3  Per.  &  Dav.  282  ;  1  Wms.  Saund.  204, 
n.  (1). 

(r)  The  maxim  is  omnis  ratihahitio  retrotrahitur  et  mandulo  aquiparatvr ;  1  Wms. 
Baund.  264  b,  n.  (e). 

(«)  Hopkins  v.  Logan,  5  Mee.  &  Wels.  247,  541. 


136  OF   CHOSES   IN   ACTION. 

at  the  request  of  the  person  making  the  promise,  and  had  also  at 
the  like  request  incurred  certain  costs,  was  held  void  on  account 
of  the  illegality  of  part  of  the  consideration,  namely,  publishing 
the  libel,  which  vitiated  the  whole,(/)  and  in  like  manner  the 
circumstance  of  a  woman's  having  cohabited  witli  a  man  is  not  a 
valid  consideration  *to  support  a  promise  made  by  him  to 
^       -^    pay  her  a  sum  of  money.(«/) 

Considerations  are  divided  in  law  into  two  classes,  good  (some- 
times called  meritorious)  and  valuable.  A  good  consideration  is 
that  of  blood,  or  the  natural  love  and  affection  which  a  person  has 
to  his  children  or  any  of  his  relatives. (y)  A  valuable  consider- 
ation may  be  either  pecuniary,  namely,  the  payment  of  money ; 
or  the  gift  or  conveyance  of  anything  valuable ;  or  it  may  be  the 
consideration  of  the  marriage  of  the  party  himself  oV  of  any  rel- 
ative ',[w)  or  the  compromise  of  a  bona  Jide  claim  ;{x)  or  any  act 
of  one  party  from  which  the  other,  or  any  stranger  at  his  request, 
express  or  implied,  derives  any  advantage ;  or  any  labor,  detri- 
ment, inconvenience  or  risk  sustained  by  the  one  party,  if  such 
labor  be  performed  or  such  detriment,  inconvenience  or  risk  be 
suffered  by  the  one  party  at  the  request,  express  or  implied,  of 
the  other,  although  such  other  may  himself  derive  no  actual  bene- 
fit.(^)  A  good  consideration  is  not  of  itself  sufficient  to  support 
a  promise,  any  more  than  the  moral  obligation  which  arises  from 
a  man's  passing  his  word  ;  neither  will  the  two  together  make  a 
binding  contract ;  thus  a  promise  by  a  father  to  make  a  gift  to  his 
child  will  not  be  enforced  against  him.(e)  The  consideration  of 
natural  love  and  affection  is  indeed  good  for  so  little  in  law,  that 
it  is  not  easy  to  see  why  it  should  be  called  a  good  consideration; 

(t)  Shackell  v.  Rosier,  2  Bing.  N.  C.  634,  644,  E.  C.  L.  R.  vol.  9. 

(«)  BinningtonV.  Wallis,  4  B.  &  Aid.  650,  652,  E.  C.  L.  R.  vol.  6.  See,  however,  Gib- 
son V.  Dickie,  3  Mau.  &  Sel.  463. 

(y)   2  Black.  Com.  297,  444. 

(w)  Campion  v.  Cotton,  17  Ves.  263  ;  Eraser  v.  Thompson,  1  Giff.  49,  65. 

(x)  Lucy's  Case,  4  De  Gex,  M.  &  G.  356  ;  Cook  v.  Wright,  1  Best  &  Smith,  559,  E.  C. 
L.  R.  vol.  101. 

(y)  Selwyn's  Nisi  Prius,  tit.  Assumpsit,  46;  1  Wms.  Saund.  211  d,  n.  (2);  2  Wms. 
Saund.  137  h,  n.  (e) 

(z)  Jeffrey  v.  Jeffrey,  1  Craig  &  Ph.  138  ;  Dillon  v.  Coppin,  4  My.  &  Cr.  647  ;  Holloway 
V.  Headington,  8  Sim.  324  ;  Meek  v.  Kettlewell,  1  Hare,  464  j  1  Phil.  342.  See,  however, 
Ellis  V.  Nimmo,  Lloyd  &  Goold,  333. 


OF   CONTRACTS.  137 

for  in  law  it  is  *considered  as  not  good  against  creditors 
within  the  statute  13  Elizabeth, (a)  in  which  the  very  phrase  ^  ^ 
good  consideration  is  used ;  it  is  not  good  to  support  a  contract ;  and 
a  gift  for  such  consideration  is  regarded  as  simply  voluntary.(fe) 
The  only  reason  why  such  a  consideration  should  be  called  good 
appears  to  be,  that  in  early  times,  previously  to  the  passing  of  the 
Statute  of  Uses,(c)  the  Court  of  Chancery  enforced  a  covenant  to 
stand  seized  of  lands  to  the  use  of  any  person  of  the  blood  of  the 
covenantor,  on  account  of  the  goodness  of  the  consideration; 
whence  it  has  happened  that,  since  that  statute,  the  legal  estate 
(being  by  that  statute  annexed  to  the  use){d)  will  pass  to  a  rela- 
tive under  a  covenant  to  stand  seized  to  his  use.(6;)  But  the  rules 
that  anciently  governed  the  Court  of  Chancery  do  not  now  regu- 
late its  proceedings ;(/)  although  modern  equity  will  still  interfere 
in  favor  of  a  wife  or  child  in  some  cases  in  which  it  will  not  in- 
terpose on  behalf  of  strangers.  (^) 

A  valuable  consideration  is,  therefore,  in  all  cases  necessary  to 
form  a  valid  contract.  It  has  indeed  been  thought  that  an  ex- 
press promise,  founded  on  a  moral  obligation,  is  sufficient  for 
this  purpose. (A)  This,  however,  appears  to  be  a  mistake.  An 
express  promise  can  give  no  original  right  of  action,  if  the  obli- 
gation on  which  *it  is  founded  could  never  have  been  itself  r-^^^^-. 
enforced.(z)  But  in  some  cases  a  valuable  consideration,  *-  ""-^ 
which  might  have  formed  a  contract  by  means  of  an  implied 
promise,  had  its  operation  not  been  suspended  by  some  positive 

(a)   Twyne's  Case,  3  Rep.  80  b  ;  ante,  p.  45. 
(A)   2  Black.  Com.  297. 
(f)  27  Hen.  VIII,  c.  10. 

(d)  Principles  of  the  Law  of  Real  Property,  126  et  seq.,  2d  ed.  ;  131,  3d  &  4th  eds.  ;  136, 
5th  ed.  ;  143,  6th  ed. 

(e)  Ibid.  p.  159,  2d  ed.  ;   164,  3d  ed.  ;   166,  4th  ed.  ;   173,  5th  ed.  ;   181,  6th  ed. 
(/■)  Ibid.  p.  131,  2d  ed ;  135,  3d  &  4th  ed.s.  ;  141,  5th  ed.  ;  148,  6th  ed. 

(§•)  Ibid.  p.  239,  2d  ed.  ;  246,  3d  ed. ;  248,  4th  ed. ;  258,  5th  ed.  ;  270,  6th  ed. 

(h)  Lee  v.  Muggeridge,  5  Taunt.  36.  This  case  may  now  be  con.sidered  as  virtually  over- 
ruled by  subsequent  authorities  mentioned  in  the  next  note.  See,  however,  Dawson  v. 
Kearton,  3  Sma.  &  GifF.  190,  qu.  ? 

(?,)  Note  to  Wennall  v.  Adney,  3  Bos.  &  Pull.  252  ;  LitMefield  v.  Shee,  2  Barn,  k  Adol. 
8U,  E.  C.  L,  R.  vol.  22;  Meyer  v.  Haworth,  8  Adol.  A  Ellis,  467  ;  S.  C,  E.  C.  L.  11.  vol. 
35.  3Nev.  <t  Per.  462  ;  Monkman  v.  Shepherdson,  11  Adol.  &  Ell.  41],  415,  E.  C.  L.  R.  vol. 
39;  S.  C.  3  Per.  &  Dav.  182;  Jennings  y.  Brown,  per  Parke,  B.,  9  Mee.  &  Wels  501;  Ea.'it- 
wood  V.  Kenyon,  ]]  Adol.  &E11.  447.  E.  C.  L.  R.  vol.  39;  S.  C.  3  Per.  &  D.  276;  2  Wms. 
Saund.  137  f,  n.  {e)  ;   Beaumont  v.  Roeve,  8  Q.  B.  483,  E.  C.  L.  R.  vol.  55. 


138 


OF   CHOSES   IN   ACTION. 


rule  of  law,  may  be  revived  and  made  available  by  a  subsequent 
express  promise.'     Thus  a  debt  barred  by  the  debtor's  having 


1  The  general  rule  of  law  prevailing  in 
the  several  States  of  the  Union  is,  that  a 
promise,  made  subsequent  to  the  considera- 
tion upon  which  it  is  based,  is  not  sufficient 
to  support  an  action  ;  Barlow  v.  Smith  et  al., 
4  Vt.  R.  139  ;  Bulkley  et  al.  v.  Laudon  et 
al.,  2  Conn.  R.  404,  S.  C.  3  Id.  76  ;  Jones  v. 
Shorter  et  al.,  Admrs.,  1  Kelley's  (Geo.)  R. 
294  ;  Waters  et  al.  v.  Simpson  et  al.,  2  Gilm. 
(111.)  R.  574;  Carson  v.  Clark,  1  Scam- 
mon's  R.  114;  Hutsen  v.  Overturf,  Id.  170; 
Roberts  v.  Gnren,  Id.  396  ;  Townsend  v. 
Briggs,  Id.  472  ;  Boston  v.  Dodge,  1  Blackf. 
R.  19;  Carr  v.  Allison,  5  Id.  64;  Head's 
Exr.,and  Exrx.,  v.  Manner's  Admrs.,  5  J.  J. 
Marsh.  R.  257  ;  Balcolm,  Exrx.,  v.  Craggin,  5 
Pick.  R.  295  ;  Andover.  &c.  v.  Gould,  6 
Mass.  R.  43;  Mills  v.  Wyman,  3  Pick.  R. 
207  ;  Dodge  v.  Adams,  19  Pick.  R.  429 ; 
Ridgway  v.  English,  2  Zabr.  R.  416;  Phette- 
place  V.  Steere,  2  Johns.  R.  443  ;  Frear  v. 
Hardenburgh,  5.  Id.  272  ;  Tioga  v.  Seneca, 
13  Id.  380  ;  Watkins  v.  Halstead,  3  Sandf. 
Super.  C.  R.  311  ;  Ehle  v.  Judson,  24  Wend. 
R.  97  ;  16  Johns.  R.  283,  n.  ;  Corastock  v. 
Smith,  7  Johns.  R.  87  ;  Smith  v.  Ware,  13 
Johns.  R.  257  ;  Hatchell  v.  Odom,  2  Dev.  & 
Bat.  L.  R.  302 ;  Johnson  v.  Johnson,  3 
Hawks'  R.  556  ;  Snevily  v.  Read,  9  Watts' 
R.  396  ;  Garrett  v.  Stuart,  1  McCord's  R. 
615;  Massey  v.  Craine,  Id.  489;  Hanley  «. 
Farrer,  1  Vt.  R.  420  ;  Parker  v.  Carter  et  al., 
4  Munf.  R.  273  ;  Bank  of  Washington  v.  Ar- 
thur et  al.,  3.  Gratt.  R.  173  ;  Colter  v. 
Greenhagen,  3  Min.  R.  126  ;  Ellison  v.  Jack- 
son, &c.,  Co.  12  Cal.  R.  542;  Smith  v.  Mud- 
gett,  20  N.  H.  R.  527;  Robinson  v.  Marshall 
11  Md.  R.  251;  Heslep  v.  Sacramento,  2 
Cal.  R.  580,  which  last  was  a  suit  brought  by 
the  administrator  of  one,  who  had  been  the 
Mayor  of  Sacramento,  to  recover  $10,000, 
which  the  Common  Council  had  voted  him,  in 
consideration  of  the  expenses  he  had  incurred 
in  his  illness,  which  was  brought  about  by  be- 
ing wounded,  while  endeavoring  to  quell  cer- 
tain public  disturbances.  There  are,  however, 
many  cases  where  a  subsequent  promise  will 
support  an  action,  and  which,  as  exceptions  to 
the  general  rule  above  stated,  may  be  classi- 
fied as  follows : 


First.  Where  a  subsequent  promise  follows 
a  previous  request ;  Carson  v.  Clark,  1  Scam. 
R.  114 ;  Ridgway  v.  English,  2  Zabr.  R. 
416 ;  Frear  v.  Hardenburgh,  5  Johns.  R. 
272;  Tioga  v.  Seneca,  13  Id.  380;  Doty  v. 
Wilson,  14  Id.  378  ;  Livingston  v.  Rogers,  1 
Caines'  R.  583  ;  Comstock  v.  Smith,  7  Johns. 
R.  87 ;  McMorris  v.  Herndon,  2  Bail.  R.  66  ; 
Lonsdale  v.  Brown,  4  Wash.  Ct.  Ct.  R.  150. 

Second.  Where  there  has  not  been  a  pre 
vious  express  request,  but  one  may  be  implied, 
from  a  subsequent  recognition  of  the  service 
performed,  which  must  be  beneficial  to  the 
one  party,  or  detrimental  to  the  other  ;  thus, 
where  one  person  pays  the  debt  of  another, 
and  the  debtor,  thereupon,  promises  to  reim- 
burse him  ;  Keenan  v.  Holloway,  16  Ala. 
R.  53  ;  Weekly  v.  Burnhan  et  al.,  2  Stew. 
R.  500  ;  Roundtree  v.  Holloway,  13  Ala.  R. 
359  ;  Roundtree  v.  Weaver,  S  Id.  314  ;  Ber- 
trand  v.  Byrd,  2  Ark.  R.  661  ;  Stocking  v. 
Sage  et  al.,  1  Conn.  R.  519;  Gardner  et  al. 
V.  Towsey,  3  Litt.  R.  426  ;  Nixon  v.  Jenkins, 
1  Hilton's  R.  318  ;  or,  where  merchandise  is 
delivered  at  one's  house,  and  he  to  whom  the 
goods  are  sent,  sanctions  the  act  by  retaining 
them  ;  Gardner  et  al.  v.  Towsey,3  Litt.R.426  ; 
McMorris  v.  Herndon,  2  Bail.  R.  56  ;  so,  also, 
where  two  go  bail  for  a  third,  and  one  of  them, 
at  much  expense,  surrenders  the  principal, and 
the  other  surety  promises  to  pay  his  proportion 
of  the  expense  ;  Greeves  v.  McAllister,  2  Bin. 
R.  691 ;  and,  the  past  use  of  money,  has  been 
held  a  good  consideration  to  support  a  promise 
to  pay  interest  ;  Garland  v.  Lockett,  5  N.  S. 
(La.)  R.  40  ;  there  are  many  other  such  cases  ; 
Webster  et  al.  v.  Drinkwater,  5  Greenlf.  R. 
322  ;  Farnham  v.  O'Brien,  22  Maine  R.  481  ; 
Davenport  i>.  Mason,  15  Mass.  R.  74  ;  R.  &  H. 
Stewart  v.  Eden,  2  Caines  R.  150  ;  Oatfield  v. 
Waring,  14  Johns.  R.  192  ;  Doty  v.  Wilson, 
Id.  378  ;  Parker  v.  Crane,  6  Wend.  R.  647  ; 
Hicks  V.  Burhans  et  al.,  10  Johns.  R.  243; 
Cunningham  v.  Garvin,  10  Pa.  St.  R.  366. 

Third.  Where  one  is  under  a  moral  obliga- 
tion to  do  a  certain  act,  and  subsequently, 
makes  an  express  promise  to  do  what  he  was 
bound  by  the  prior  moral  obligation  to  per- 
form :  Commissioners  of  Canal  Fund  i;.  Perry, 
5  0.  R.  48  ;  Hill  V.  Henry,  17  Id.  9  ;  Shenk 


OF   CONTRACTS. 


139 


become   bankrupt  and  obtained  Ms  certificate,  might  formerly 
have  been  enforced  against  him,  if,  after  his  bankruptcy,  he  had 


V.  Mingle,  13  Serg.  &  Raw.  R.  29  ;  Nesmuth 
V.  Drum,  8  Wat.  &  Serg.  R.  9  ;  McMorris  v. 
HerndoD,  2  Bail.  R.  56  ;  Glass  v.  Beach,  6 
Vt.  R.  176.  But  it  is  Dot  every  moral  obli- 
gation that  will  support  a  subsequent  promise  ; 
for  a  promise  to  feed  the  hungry,  or  clothe 
the  naked,  or  to  perform  acts  of  benevo- 
lence and  charity,  will  not  support  an  ac- 
tion ;  as,  where  a  son  promised  to  pay  for 
necessaries,  which  had  been  advanced  to  his 
father,  if  he  did  not,  such  promise  was  held 
not  binding  ;  Cook  v.  Bradley,  7  Conn.  R. 
57  ;  Parker  v.  Carter  et  al.,  4  Munf.  R.  273  ; 
and  the  same  was  held  of  an  agreement  by  a 
father,  to  pay  for  the  expenses  of  the  sickness 
of  a  son,  who  was  of  age.  and  away  from  home, 
made  subsequently  to  their  being  incurred  ; 
Mills  V.  Wyman,  3  Pick.  R.  207  ;  and,  of  the 
same  principle  are,  Dodge  v.  Adams,  19  Pick. 
R.  429  ;  Ridgway  v.  English,  2  Zabr.  R.  416  ; 
and  Watkins  v.  Halstead,  3  Sandf.  Super.  C. 
R.  311,  which  last  was  a  promise  by  a  mar- 
ried woman,  made  after  her  divorce  from  her 
husband, to  pay  for  necessaries  which  had  been 
furnished  her  during  her  coverture  ;  btu  see 
Hemphill  v.  McCiimans,  24  Pa.  St.  R.  367  : 
Yiser  v.  Bertrand,  14  Ark.  R.  267;  all  of 
which  cases,  as  well  as  the  following,  prove 
that  by  the  term  "moral  obligation,"  as  ap- 
plied legally,  is  meant,  what  the  moralist 
would  call  a  perfect  moral  obligation,  that  is, 
an  obligation  of  justice,  and  not  merely  of 
benevolence  and  piety  ;  Jones  v.  Shorter  et 
al.,  Admrs.,  1  Kelly's  R.  294  :  Farnham  «;.  0'. 
Brien,  22  Maine  R.  481  :  Andover,  Ac,  v. 
Gould,  6  Mass.  R.  43  ;  Davenport  v.  Mason, 
15  Id.  74;  Mercer  v.  Stark,  Walk.  (Miss.) 
R.  4.51  ;  Tioga  v.  Seneca,  13  Johns.  R.  380  ; 
Hatchell  v.  Odom,  2  Dev.  &  But.  L.  R.  302  ; 
McMorris  v.  Herndon,  2  Bail.  R.  56  ;  Hanley 
V.  Farrar,  1  Vt.  R.  420.  But  other  cases 
indicate  still  more  specifically,  what  is  meant 
by  theterm  "moral  obligation,"  showing  that 
"it  is  not  expressive  of  any  vague  and  unde- 
fined claim,  but  of  those  imperative  duties, 
which  would  be  enforceable  at  law,  were  it 
not  for  some  positive  rule  of  law,  legal  max- 
im, or  statute  provision,  which,  with  a  view 
to  general  benefit,  exempts  the  party  in  that 
particular  instance,  from  legal  liability.     On 


such  duties,  so  exempted,  the  express  prom- 
ise operates  to  revive  the  liability,  and  take 
away  the  exemption,  because  if  it  were  not  for 
the  exemption,  they  would  be  enforced  at  law 
through  the  medium  of  an  implied  promise." 
Paul  V.  Stackhouse,  38  Pa.  St.  R.  304. 

See  also  to  the  same  point,  one  class  of  cases 
proving  this,  is  that  relative  to  bankrupts  or 
insolvents,  who,  after  obtaining  a  discharge, 
have  promised  their  creditors  to  pay  them  in 
full ;  Maxim  v.  Morse,  8  Mass.  R.127  ;  Trum- 
bull V.  Tilton,  1  Fost.  (N.  H.)  R.  129;  Gra- 
ham V.  Hunt,  8  B.  Mon.  R.  8  ;  Shippey  v. 
Henderson,  14  Johns.  R.  178  ;  Erwin  v.  Saun- 
ders et  al.,  1  Cow.  R.  249;  Stafi'ord  v.  Bacon, 
25  Wend.  R.  384  ;  Depuy  v.  Stewart,  3  Id.  135  ; 
Kingston  v.  Wharton,  2  Serg.  &  Raw.  R.  208 ; 
Earnest  v.  Parke,  4  Raw.  R.  452  ;  Field's  Es- 
tate, 2  Id.  351  ;  Lonsdale  v.  Brown,  4  Wash. 
C.  C.  R.  150  ;  Bearing  v.  Moffitt,  6  Ala.  R. 
776  ;  Sconton  v.  Eislord,  7  Johns.  R.  36  ; 
Brown  et  ux.v.  Collins,  8  Hum.  R.  611  ;  Feeny 
V.  Daly,  8  Cal.  R.  84  ;  but  note  a  difference, 
between  a  release  by  provisions  of  positive 
law,  and  a  discharge  by  the  voluntary  act  of 
the  creditor;  Montgomery  v.  Lampton,  3  Met. 
(Ky.)  R.  519.  Another  class  of  cases  has 
arisen  from  promises  to  pay  debts  barred  by 
the  statute  of  limitations,  in  which  the  prom- 
ises were  held  valid  ;  Carson  ti.  Clark,  1  Scam. 
R.  114;  Hend'sExr.,  andExrx.,1^.  Manner's 
Admrs.,  5  J.  J.  Marsh.  R.  257  ;  Harrison  v. 
Handley,  1  Bibb's  R.  443  ;  Gray  v.  Lawridge, 
2  Id.  285  ;  Bell  v.  Rowland's  Admrs.,  Hard. 
R.  301  ;  Guy  V.  Tarns,  6  Gill's  R.  85  ;  Bangs 
V.  Hall,  2  Pick.  R.  368  ;  Davenport  v.  Ma- 
son, 15  Mass.  R.  74;  Dawes  v.  Shed  et  al., 
Exrs.,  15  Id.  7  ;  Exeter  Bk.  v.  Sullivan  et 
al.,  6  N.  H.  R.  135  ;  Kittredge  v.  Brown,  9 
Id.  377  ;  Walker  v.  Eastman,  6  Id.  367  ;  Bus- 
well  V.  Roby,  3  Id.  467  ;  Stanton  v.  Stanton 
2  Id.  425  ;  Atwood  v.  Coburn,  4  N.  H.  R 
315;  Rice  et  al.,  v.  Wilder  et.  al.,  Id.  336 
Belton,  Admr.,  v.  Cutts,  Admr.,  11  Id.  170 
Ridgway  v.  English,  2  Zabr.  R.  416  ;  Exrs 
of  Conovers  v.  Conover  et  al.,  Sax.  R.  404 
Saltur  V.  Saltur's  Admr.,  1  Halst.  405  ;  Dnn 
forth  V.  Culb'ir,  11  Johns.  R.  146;  Sands  v 
GeLston,  15  Id.  511  ;  Hatchell  v.  Odom,  2 
Dev.  &  Bat.  L.  R.  302;   Sherrod  v.  Bennett 


140 


OF   CHOSES   IN    ACTION. 


expressly  promised  to  pay  it;(J)  but  such  a  promise  was  required, 

(j)  Trueman  v.  Fenton,  Cowper,  544;  Kirkpatrick  v.  Tattersall,  13  Mee.  &  Wels.  766. 


et  al.,  8  Ired.  L.  R.  309  ;  Peebles  i'.  Mason,  2 
Dev.  L.  R.  367  ;  Smallwood  v.  Smallwood,  2 
Dev.  &  Bat.  L.  R.  330 ;  Rainey  v.  Link,  3 
Ired.  L.  R.  376  ;  Turner  v.  Chrisman,  20  0. 
R.  332  ;  Hill  v.  Henry,  17  Id.  9  ;  Jones  et  al., 
Exrs.,  V.  Moore,  Admr.,  5  Bin.  R.  573; 
Streeter  t».  Luter,  Admr.,  Leg.  Intellig. ,  Apr. 
7,  1854  ;  Eckert  v.  Wilson,  12  Serg.  &  Raw. 
R.  393  ;  Fries  v.  Boiselet,  9  Id.  128  ;  Farly 
V.  Rustenbaden,  3  Pa.  St.  R.  418  ;  Hayleba- 
ker  V.  Reeves,  12  Pa.  St.  R.  264  ;  Forney  v. 
Benedict,  5  Pa.  St.  R.  225  ;  Gilkyson  v.  La^ 
rue,  6  Wat.  &  Serg.  R.  213  ;  Davis  v.  Steiner, 
14  Pa.  St.  R.  275  ;  Harbold's  Exrs.  v.  Kuntz, 
4  Id.  210 ;  Huff  v.  Richardson,  7  Id.  388  ; 
Reynolds  v.  Johnson,  9  Hump.  R.  444 ;  Coles 
V.  Kelsey,  2  Tex.  R.  541  ;  Burton  v.  Stevens, 
24  Vt.  R.  131  ;  22  Id.  179  ;  Paddock  v.  Colby 
et  al.,  18  Vt.  R.  485  ;  Clementson  v.  Wil- 
liams, 8  Cranch's  R.  73;  Wetzell  v.  Bussard, 
11  Wheat.  R.  309;  Bell  v.  Morrison,  1  Pet. 
R.  351  ;  Lonsdale  v.  Brown,  4  Wash.  C.  C  R. 
150  ;  Raudon  v.  Toby,  11  How.  R.  493  ; 
Chandlery.  Glover's  Admr.,  32  Pa.  St.  R. 
509  ;  Pritchard  v.  Howell,   1  Wis.  R.  131. 

Upon  the  same  principle,  promises,  made  by 
one  after  arriving  at  full  age.  to  do  what  he 
agreed  to  do  while  a  minor,  have  been  held  to 
be  legally  operative  ;  Bliss  et  al.  v.  Perryman, 
Scam.  R.  484  ;  Taylor  w.  Rundell,  2  Annual  R. 
367  :  Merriam  et  al.  v.  Wilkins  et  al.,  6  N.  H. 
R.  432  ;  Wright  v.  Steele,  2  Id.  51  :  or,  a  prom- 
ise made  by  a  child  who  was  heir  to  a  large 
estate,  to  her  brother-in-law,  after  she  came  of 
age,  that  she  would  indemnify  him  against  all 
loss,  by  reason  of  a  contract  he  had  made 
with  a  third  party,  to  be  responsible  for  the 
charges  of  said  child  while  a  minor  ;  Baker 
V.  Gregory,  28  Ala.  R.  544.  And  by  analogy 
with  the  foregoing  cases,  if  the  consideration 
be  still  continuing,  a  subsequent  promise  will 
be  valid ;  Carroll  v.  Nixon,  4  Wat.  &  Serg. 
R.  516  ;  Carman  v.  Noble,  9  Pa.  St.  R.  366  ; 
Nesmuth  v.  Drum,  8  Wat.  &  Serg.  R.  9 ; 
Lonsdale  v.  Brown,  4  Wash.  C.  C.  R.  150  ; 
Grove  v.  McCalla,  21  Pa.  St.  R.  44  ;  Bailey 
V.  Bussing,  29  Conn.  R.  1  ;  so,  a  promise  to 
pay  the  principal  of  a  debt,  void  by  the  usury 
laws,  is  binding ;  Early  v.  Mahon,  15  Johns. 


R.  147 ;  and,  this  is  also  true  of  a  promise 
made  by  an  executor,  relative  to  the  debt  of 
his  testator  ;    which  affords  suflScient  ground 
for  an   action   against  the  executor  de  bonis 
projiriis  ;  Clark  v.  Herring,  5  Bin.  R.  33  ;  but 
a  promise  by  an  administrator  will   not  take 
a  case  out  of  the  statute  of  limitations  ;  Clark 
V.  Maguire's  Admrx.,  35  Pa.  St.  R.  259  ;  so, 
too,    where    money    has    been    twice    paid, 
through  failure  to  produce  the  receipt  given 
on  first  payment,  a  subsequent  promise  to  re- 
fund, will  be  binding  ;    Bentley  v.  Morse,   14 
Johns.  R.  468.    Another  class  of  cases  arises, 
where  a  promise  to  pay,  has  been  made  by  an 
indorser  of  a  promissory  note,  who  has  knowl- 
edge of  a  want  of  due  diligence  in  the  holder 
in  giving  him  notice ;  Breed  v.  Hillhouse,  7 
Conn.  R.  523 ;  Hopkins  v.  Liswell,  12  Mass. 
R.    52  ;     Thornton  v.  Wynn,   12  Wheat.  R. 
183.  The  consideration  of  a  moral  obligation, 
which  seems  to  have  given  rise  to  more  em- 
barrassment  than   any   other,     is,    where    a 
promise  has  been  made  to  pay  a  debt,  subse- 
quently to  a  voluntary  release  of  the  debt  by 
the  creditor  ;  some    of  the  cases    are  in  favor 
of  the  validity  of  such  a  promise  ;    Jamison 
V.  Ludlow,    3  Ann.   (La.)    R.    493 ;    Doty   v. 
Wilson,  14  Johns.  R.  378  ;  Willing  v.  Peters, 
12  Serg.  k  Raw.  R.  182  ;  McPherson's  Admrs. 
V.  Reeves,  2  Pa.  R.  521  ;  and  others,  against 
it ;  Warren  v.  Whitney  et  al.,   24  Maine  R. 
561  ;  Valentine  v.  Foster,   1  Metcf.  R.  520  ; 
Snevily  v.  Read,    1  Wat.  R.  396  ;    the  law  is 
probably,    upon    principle,  with    the  former 
cases  ;  for  of  the  latter,  Valentine  v.  Foster, 
was  a  promise  made  by  a  witness,  subsequent 
to  a  release,  made  in  order  to  qualify  him  for 
giving  testimony,  and  the  court  said  that  it 
would  destroy  all  confidence  in  evidence  given 
under   such    circumstances,  if  a   subsequent 
promise  by  the  witness,  could  revive  bis  lia- 
bility ;  and  another,  Snevily  v.  Read,  was  a 
case  where  a  creditor  had  received  satisfac- 
tion of  his  debt,  by  taking  the  body  of  his 
debtor,  whom  he  subsequently  released  from 
arrest,  and    the    debtor  afterwards   promised 
to  pay  ;  which  was  held  not  sufiicient  to  sup- 
port an  action,  for  the  arrest  had  been  a  sat- 
isfaction of  the  prior  debt,  and  oonsequently, 


OF   CONTRACTS.  141 

by  the  modern  bankrupt  acts,{k)  to  be  made  in  writing  signed  by 
the  bankrupt,  or  by  some  person  thereto  lawfully  authorized  by 
him  in  writing;  and  the  Bankrupt  Law  Consolidation  Act,  1849, 
rendered  all  such  promises  void;(r)  whilst  the  last  bankrupt  act 
on  this  as  on  most  points  appears  far  from  clear.(m)  So  a  simple 
contract  debt,  which  would  otherwise  have  been  barred  by  the 
Statute  of  Limitation8,(?i)  from  having  been  incurred  upwards  of 
six  years,  may  be  re^dved  by  a  subsequent  promise  to  pay,  or 
even  by  an  unconditional  acknowledgment  of  the  debt;(o)  but 
by  statutes  such  promise  or  acknowledgment  must  be  made  or 
contained  by  or  in  some  writing,  to  be  signed  by  *the  ^^^qt 
party  chargeable  thereby,  or  by  his  agent.(^)  And  in  ^  -1 
like  manner  a  debt  incurred  or  contract  made  by  a  person  dur- 
ing infancy,  and  voidable  on  that  account,  may  be  confirmed  by 
an  express  promise  or  ratification  made  when  of  full  age;(9) 
although  such  a  promise  or  ratification  must  now,  by  the  statutes 
just  mentioned,(r)  be  made  by  some  writing  signed  by  the  party 
to  be  charged  therewith,  or  his  agent. 

(k)  6  Geo.  IV,  e.  16,  s.  131 ;  5  &  6  Vict.  c.  122,  s.  43. 

(/)  Stat.  12  &  13  Vict.  106,  s.  204 ;  Kidson  v.  Turner,  3  H.  &  N.  581. 

(m)  Compare  sec.  164  of  stat.  24  &  25  Vict.  c.  134,  with  sec.  204  of  stat.  12  &  13  Vict. 
c.  106. 

{>i)  Stat.  21  Jac.  I,  c.  16,  s.  3. 

(o)  Bac.  Abr.  tit.  Limitations  of  Actions  (E)  ;  Prance  v.  Simpson,  1  Kay,  678  ;  Sidwell 
V.  Mason,  2  H.  &  N.  306,  310  ;  Holmes  v.  Mackrell,  3  C.  B.,  N.  S.  789,  E.  C.  L.  R.  vol.  71 ; 
Cornforth  v.  Smithard,  5  H.  &  N.  13  ;  Francis  v.  Hawkesley,  1  E.  <fc  E.  1052,  E.  C.  L.  R. 
vol.  102. 

ip)  Stat.  9  Geo.  IV,  c.  14,  s.  1,  called  Lord  Tenterden's  Act;  19  &  20  Vict.  c.  97,  s.  13. 

(q)  Bac.  Abr.  tit.  Infancy  and  Age  (I)  8  ;  Williams  v.  Moor,  11  Mee.  &  Wels.  256,  263  ; 
Harris  v.  Wall,  1  Ex.  Rep.  122. 

(/■)   Stat.  9  Geo.  IV,  c.  14,  s.  5  j  19  &  20  Vict.  c.  97,  s.  13. 


the  subsequent   promise  was  without  consid-  Alna  v.  Plummer,  4  Greenlf.  R.  258  ;   Hano- 

eralion.     Where   the  act  to    be  done,  is  one,  ver  v.  Turner,  14  Mass.  R.  227  ;  Hapgood  v. 

which  the  party  who  subsequently  promises,  Houghton,  Exr.,  10  Pick.  R.  154  ;   Shenk  v. 

is  legally,  as  well   as  morally,  bound  to  per-  Mingle,    13  Serg.    &   Raw.   R.    29  ;    Allen  v. 

form,   the    promise    will    be  supported  ;  as  a  Davison,  16  Ind.  416  ;  but  it  does  not  follow, 

promise  to  maintain  a  bastard  child  ;  or,   an  that  if  the    party  who  is  legally  and  morally 

agreement  by  an  executor,  to  pay  the  funeral  bound  to  perform  a  certain  act,  in  such  cases 

expenses  of  his  testator  ;  or  by  a  hu.^band  to  as  have  been  just   stated,  executes  it,  it  will 

pay  for  nece.ssaries  advanced  to  a  wife,  who  give  ground  for  the  implication  of  a  promise; 

had  become  a  charge  upon  a  parish,  and  the  but  quite  the  contrary  ;  Salsbury  v.  I'hilaJel- 

same  is  true  of  like  examples  ;   Hargrove  et.  phia,  44  Pa    St.  R.  303  ;    Duffy  v.   Duffy    I'd. 

al.,  Exrs.,  v.  Freeman,  12  Ga.   R.  342  ;  Car-  399  ;  Lynn  v.  Lynn,  29  Pa.  St.  R.  369 
son  V.  Clark,  1  Scam.  R.  114  ;  Inhabitants  of 


142  OF    CHOSES    IN   ACTION. 

By  the  ancient  common  law,  every  legal  instrument  in  writing 
was  a  deed  sealed  and  delivered ;(.s)  and  in  accordance  with  this 
circumstance,  contracts  are,  as  we  have  8een,(^)  now  divided  in 
law  into  two  kinds  only,  namely,  parol  (that  is  verbal)  or  simjple 
contracts,  and  special  contracts  made  by  deed.  But  as  the  art  of 
writing  became  general,  many  parol  contracts  were,  for  greater 
certainty,  put  into  writing,  though  not  made  by  deed.  And  by 
some  statutes  of  modern  times,  writing  is  required  to  most  sim- 
ple contracts  respecting  matters  of  importance.  These  statutes 
we  shall  now  proceed  to  notice,  premising  that  in  all  cases  where 
writing  is  by  any  statute  made  necessary  to  a  contract,  the  con- 
tract is  still  a  parol^  one,  though  evidenced  by  the  writing  ;(w) 
but  when  a  contract  is  made  by  deed,  the  deed  itself  is  the  con- 
tract, (x)  The  first  and  most  important  statute  then,  by  which 
writing  is  required  to  many  agreements,  is  the  Statute  of 
Frauds, (?/)  which  enacts  in  its  fourth  section  that  no  action  shall 
be  brought  whereby  to  charge  *any  executor  or  adminis- 
'-  ^  trator  upon  any  special  promise  to  answer  damages  out  of 
his  own  estate,  or  whereby  to  charge  the  defendant  upon  any 
special  promise  to  answer  for  the  debt,  default,  or  miscarriage  of 
another  person ;  or  to  charge  any  person  upon  any  agreement 
made  upon  consideration  of  marriage ;  or  upon  any  contract  or 
sale  of  lands,  tenements,  or  hereditaments,  or  any  interest  in  or 
concerning  them;  or  upon  any  agreement  that  is  not  to  be  per- 
formed within  the  space  of  one  year  from  the  making  thereof; 
unless  the  agreement  upon  which  such  action  shall  be  brought, 
or  some  memorandum  or  note  thereof,  shall  be  in  writing,  and 
signed  by  the  party  to  be  charged  therewith,  or  some  other  per- 

[s)   See  Principles  of  the  Law  of  Real  Property,  118,  2d  ed.  ;  123,  3d  &  4th  eds.  ;   128,  Mh 
ed.  ;  134,  6th  ed. 
(0   Atite,  p.  68. 

{V.)   Sugd.  Vend.  &  Pur.  115,  13th  ed. 

(x)   Dyer,  305  a;   Byron  v.  Byron,  Cro.  Eliz.  472  ;  1  Wins.  Saund.  274,  a,  n.(3). 
(y)   29  Car.  II,  c.  3. 


1  The  word  parol  is  generally  a  cause  of  which  are  under  seal,  bearing   the  name  of 

much  confusion  to  students,   particularly  in  deeds  or  specialties. 

its  application  to  written  contracts  not  under  ^  The  4th  section  of  the  Statute  of  Frauds, 

s^l  ;   a  parol  contract,  legally  defined,  is  a  29  Car.   II,  c.  3,  is  in  the   following  words  : 

contract  made   either  verbally,  or  in  writing  "  And  be  it  further  enacted  by  the  authority 

not  under  seal,  as   distinguished  from  those  aforesaid.  That  from  and  after,"  Ac,  "  no  ac- 


OF   CONTRACTS. 


143 


son  thereunto  by  him  lawfully  authorized.^  This  enactment,  it 
will  be  observed,  does  not  give  to  writing  any  validity  which  it 
did  not  possess  before.     A  written  promise  made  since  this  stat- 


tion  shall  be  brought,  whereby  to  charge 
any  executor  or  administrator,  upon  any  spe- 
cial promise,  to  answer  damages  out  of  his 
own  estate  ;  (2)  or  whereby  to  charge  the  de- 
fendant, upon  any  special  promise,  to  answer 
for  the  debt,  default,  or  miscarriage  of  an- 
other person  ;  (3)  or,  to  charge  any  person 
upon  any  agreement  made  upon  consideration 
of  marriage  ;  (4)  or  upon  any  contract  or  sale 
of  lands,  tenements,  or  hereditaments,  or,  any 
interest  in  or  concerning  them  ;  (5)  or  upon 
any  agreement,  that  is  not  to  be  performed 
within  the  space  of  one  year  from  the  making 
thereof;  (6)  unless  the  agreement  upon  which 
such  action  shall  be  brought,  or  some  memo- 
randum or  note  thereof,  shall  be  in  writing, 
and  signed  by  the  party  to  be  charged  there- 
with, or  some  other  person  thereunto  by  him 
lawfully  authorized." 

The  above  section  is  in  force  in  Florida, 
Georgia,  Maine,  Massachusetts,  Maryland, 
New  Jersey,  Ohio,  Vermont,  and  Virginia, 
by  legislative  adoption  ;  and  its  provisions 
have  been  received  and  acknowledged  by 
nearly  all  the  other  States.  By  the  enactment 
of  the  legislatures  of  Alabama,  Kentucky, 
Mississippi,  and  Tennessee,  the  words  ''or 
make  any  lease  thereof,  for  a  longer  term 
than  one  year,"  have  been  inserted  in  place 
of,  "or  any  interest  in  or  concerning  them." 
In  New  Hampshire,  the  words  "or  any  in- 
terest in  or  concerning  them,"  are  omitted. 
In  Arkansas,  the  words  "  or  to  charge  any 
person  upon  any  lease  of  lands,  tenements, 
or  hereditaments,  for  a  longer  term  than  one 
year,"  follow  the  words,  "  or  any  interest  in 
or  concerning  them."  In  North  Carolina, 
the  provisions  respecting  contracts  in  consid- 
eration of  mariage,  and  those  not  to  be  per- 
formed within  one  year,  are  omitted  ;  but  in 
Texas  these  are  retained,  and  it  is  also  en- 
acted that  a  parol  lease  for  more  than  one  year 
shall  be  invalid.  The  Civil  Code  of  Louisiana, 
art.  2415,  without  adopting  in  terms  the  Stat- 
ute of  Frauds,  declares  generally,  that  all  ver- 
bal sales  of  immovable  property  shall  be  void. 
By  an  act  of  the  legislature  of  Delaware,  one 
person  shall  not  be  liable   to   answer  for  the 


debt  of  another,  of  twenty-five  dollars  and 
upwards,  unless  the  agreement  is  in  writing, — 
nor  shall  one  be  liable  to  answer  for  another's 
debt  of  five  dollars,  and  not  exceeding  twen- 
ty-five dollars,  "unless  such  promise  and  as- 
sumption, shall  be  proved  by  the  oath  or  af- 
firmation of  one  credible  witness,  or  some 
memorandum  or  note  in  writing,  shall  be 
signed  by  the  party  to  be  charged  therewith." 
In  Pennsylvania,  the  Statute  of  Frauds  is 
not  in  force  ;  Anon.  1  Dal.  R.  1  ;  McDowell 
V.  Oyer,  21  Pa.  St.  R.  417  ;  and  the  only  pro- 
visions on  the  subject  are  to  be  found  in  an 
act  entitled  "  An  act  for  prevention  of  frauds 
and  perjuries,"  passed  March  21st,  1772, 
the  first  section  of  which  is  similar  to  the 
first  three  sections  of  the  Statute  of  Charles 
II  ;  and  the  acts  of  Apr.  26,  1855,  and  Apr. 
22,  1856  ;  the  former  of  which  enacts,  that  no 
executor  or  administrator  shall  be  liable,  upon 
any  promise  to  answer  out  of  his  own  estate, 
nor  any  person  liable  to  answer  for  the 
debt  of  another,  unless  the  said  promise  be 
in  writing,  or  the  debt  less  than  $20  ;  and 
the  latter  enjoins,  that  all  declarations  of 
trusts,  and  assignments  thereof,  must  be  in 
writing. 

The  following  are  some  of  the  more  recent 
decisions  on  this  subject ;  Blount  v.  Hawkins, 
19  Ala.  R.  100  ;  Turner  v.  Fenner  et  al., 
Id.  365  ;  Brewer  v.  Brewer  et  al..  Id.  482  ; 
Brainard  v.  McDevitt,  21  Id.  119  ;  Martin  v. 
Black's  Exr.,  Id.  721;  Blakeney  v.  Fergu- 
son et  al.,  3  Eng.  R.  260  ;  Allen  et  al.  v.  Jar- 
vis,  29  Conn.  R.  38  ;  Marvin  v.  Foxon,  Id. 
486  ;  Clark  v.  Pendleton,  Id.  495  ;  Eaton  v. 
Whittaker,  18  Id.  222  ;  Russell  v.  Slade  et 
al.,  12  Id.  455  ;  Downey  v.  Hotchkiss,  2  Day's 
R.  225  ;  Scotien  v.  Brown,  4  Earring.  R.  324  ; 
Dorman  v.  Bigelow,  Exr.,  1  Florida  R.  281  ; 
Cameron  et  al.  v.  Ward,  8  Ga.  R.  245  ;  Hol- 
lingshead,  Admr. ,  v.  McKenzie,  Id.  457; 
Thornton  v.  Heirs  of  Henry,  2  Scam.  R.  219; 
Murphy  et  al.  v.  Merry,  8  Blackf.  R.  295  ; 
Shirley  «;.  Shirley,  7  Id.  452;  Barickman  v. 
Rhykendall,  6  Id.  24  ;  Chandler  et  ux.  v.  Da- 
vidson, Id.  3G7  ;  Johnston  v.  Glancy  etal.,  4 
Id.  94  ;  Huckleraan,  adm'r,  v.   Miller  et  al.. 


144  OF   CHOSES   IN    ACTION. 

nte,  without  any  consideration,  is  quite  as  much  nudum  pactum  as 
it  would  have  been  before,(2^)  The  statute  merely  adds  a  further 
requisite  to  the  validity  of  certain  contracts,  namely,  that  they 
shall,  besides  being  good  in  other  respects,  be  put  into  writing, 
otherwise  no  action  shall  be  maintained  upon  them.(ft) 

A  great  number  of  cases  have  been  decided  upon  the  above 
section  of  this  celebrated  statute.  One  of  the  most  important  is 
that  of  Wain  v.  Warlters,{h)  in  which  it  was  held  that  the  statute, 
in  requiring  the  agreement  to  be  in  writing,  required  that  the  con- 
sideration, which  is  part  of  the  agreement,  should  be  in  writing,  as 
well  as  the  promise  itself.  And  therefore  a  promise  in  writing 
P^-r-i  *to  pay  the  debt  of  a  third  person,  which  did  not  state  any 
'-  -'  consideration,  was  held  to  give  no  cause  of  action ;  and 
parol  evidence  of  a  consideration  was  not  allowed  to  be  given. 
This  case  was  followed  by  many  other  decisions  to  the  same 
eflect.(c)  But  a  recent  statute  now  provides  that  no  special 
promise  to  answer  for  the  debt,  default,  or  miscarriage  of  another 

(z)   See  Williams  on  Executors,  pt.  4,  bk.  2,  ch.  2,  sec.  2;   1  Wms.  Saund.  211,  n.  (2). 

(a)  Agreements  where  the  matter  thereof  is  of  the  value  of  5/.,  or  upwards,  are,  with 
some  exceptions,  liable  to  a  stamp  duty  of  &d.,  with  a  further  progressive  duty  of  the  same 
amount  for  every  entire  quantity  of  1080  words  beyond  the  first  1080  ;  stat.  23  Vict.  c.  15. 

(i)  5  East,  10  ;  2  Smith's  Leading  Cases,  147. 

(c)  Saunders  v.  Wakefield,  4  Barn,  k  Aid.  595,  E.  C.  L.  R.  vol.  6  ;  Morley  v.  Boothby,  3 
Bing.  107,  E.  C.  L.  R.  vol.  11  ;  Clancy  v.  Piggott,  2  Add.  &  Ell.  473,  E.  C.  L.  R.  vol.  29; 
1  Smith's  Leading  Cases,  136  ;  1  Wms.  Saund.  211,  n.  {d)  \  Price  v.  Richardson,  15  Mee.  k 
Wels.  539. 

Id.  323;  Carnutt  v.  Roberts,  11  B.  Mon.  R.  Ewing  v.  Tees,  1  Bin.  R.  450;  Wilson  v. 
42  ;  Tuttle  v.  Swett  et  al.,  31  Maine  R.  555  ;  Clark,  1  Wat.  &  Serg.  R.  554  ;  Boyer  v.  Mc- 
Preble  v.  Baldwin,  6  Cush.  R.  549  ;  Taney  v.  Culloch,  3  Id.  429  ;  Miller  v.  Hower,  2  Raw 
Bachtell,  9  Gill's  R.  205  ;  Weed  et  al.  v.  R.  53  ;  Eckert  v.  Eckert,  3  Pa.  R.  332  ;  Eck- 
Terry,  2  Doug.  R.  344  ;  Jones  v.  Palmer,  1  ert  v.  Mace,  Id.  364,  n.  ;  Qalbraith  v.  Gal- 
Id.  379;  Gothard  v.  Flynn,  25  Miss.  R.  braith,  5  Wat.  R.  146  ;  Brawdy  ij.  Brawdy,  7 
68  ;  Bailey  et  al.  v.  Trustees  of  Mineral  Pa.  St.  R.  16  ;  Taylor  v.  Drake,  4  Strobh.  L. 
School  District,  14  Mo.  R.  499;  Hart  v.  R.  431;  Compton  v.  Martin,  6  Rich.  R.  14; 
Rector  et  al.,  13  Id.  497  ;  Halsa  v.  Halsa,  8  Elfe  v.  Gadsden,  2  Id.  373  ;  Bowles  v.  Wood- 
Id.  303  ;  Pitcher  v.  Wilson,  6  Id.  46  ;  Green-  son,  6  Gratt.  R.  88  ;  Ware  v.  Stephenson,  10 
leaf  et  al.  v.  Burbank,  13  N.  H.  R.  454  ;  Leigh's  R.  171  ;  Collins,  Admrx.,  v.  Row,  Id. 
Sampson  v.  Burnside,  Id.  265;  Drake  v.  114  ;  Warnick  «;.  Grosholz,  3  Grant's  Cases, 
Newton,  3  Zabr.  R.  Ill;  Field  et  al.  v.  234;  Kuns's  Exrs.  v.  Young,  34  Pa.  St.  R. 
Runk,  2  Id.  525 ;  Clark  v.  Tucker  et  al.  2  60  ;  Alger  v.  Scoville,  1  Gray's  R.  391 ; 
Sandf.  Super.  C.  R.  157;  Wyman  v.  Smith,  Woodford  v.  Paterson,  32  Barb.  R.  630; 
Id.  331 ;  Simms  v.  Kileian,  12  Ired.  L.  R.  Hutchinson  «.  Hutchinson,  46  Maine  R.  154  ; 
252  ;  Ledford  v.  Ferrell's  Admr.  et  al.,  Id.  Easter  v.  White,  12  0.  R.  (N.  S.)  219. 
285;   Reed  v.  Evans  et  al.,  17  0.   R.  128; 


OF   CONTRACTS.  145 

person,  being  in  writing  and  duly  signed,  sliall  be  invalid  to  sup- 
port an  action,  bj  reason  only  that  the  consideration  for  such 
promise  does  not  appear  in  writing,  or  by  necessary  inference 
from  a  written  document. ((^  The  phrase  in  the  statute,  to  a7i- 
swer  for  the  debt,  default,  or  miscarriage  of  another  person,  means 
to  answer  for  a  debt,  default  or  miscarriage  /o?'  which  that  other 
remains  liable.(e)  Thus  where  one  party  to  an  agreement  verbally 
promised  the  other,  that,  in  consideration  of  his  discharging  from 
custody  a  third  person  whom  he  had  taken  in  execution  for  debt, 
he,  the  first  party,  would  pay  the  debt,  it  was  held  that  action 
might  well  be  brought  on  this  promise,  although  it  was  not  put 
in  writing.(/)  For  this  was  not  a  promise  to  answer  for  the  debt 
of  another  person,  to  which  that  other  remained  liable,  but  to  pay 
a  debt  from  which  the  other  was  discharged.  It  was  an  original 
promise  to  pay,  and  not  a  collateral  promise  to  guarantee,  which 
is  the  meaning  in  the  statute  of  the  words  "  answer  for."  The 
words,  "  any  agreement  that  is  not  to  be  performed  within  the 
space  of  one  year  from  the  making  thereof,"  have  been  held  to 
mean  an  agreement  which  *appears  from  its  terms  inca-  r-^r^n-, 
pable  of  performance  within  the  year.  Thus  where  one  '-  -* 
man  promised  another,  for  one  guinea,  to  give  him  a  certain 
number  on  the  day  of  his  marriage,  it  was  held  that  a  writing 
was  unnecessary,  for  the  marriage  might  have  happened  within 
the  year,(^)  So  a  contract  by  A.  that  his  executor  shall  pay 
10,000/.  need  not  be  in  writing  ;(A)  for  the  death  of  A.  and  pay- 
ment of  the  money  may  all  take  place  within  a  twelvemonth. 
It  has  also  been  held  that,  in  order  to  bring  an  agreement  within 
this  clause  of  the  statute,  so  as  to  render  writing  necessary,  both 
parts  of  the  agreement  must  be  such  as  are  not  to  be  performed 
within  a  year  fi'om  the  making  thereof.  Thus,  where  a  landlord 
agreed  to  lay  out  50/.  in  improvements,  in  consideration  of  the 
tenant  undertaking  to  pay  him  51.  a  year  during  the  remainder 

(d)  Stat.  19  &  20  Vict.  c.  97,  s.  3.     See  Holmes  v.  Mitchell,  7  C.  B.  N.  S.  361. 

(e)  1  Wms.  Saund.  211  b,  n.  (2)  ;  1  Smith's  Leading  Cases,  134;  Green  v.  Cresswell,  10 
Ad.  &  Ell.  453,  E.  C.  L.  R.  vol.  37  ;  S.  C.  2  Per.  &  Dav.  430 ;  Cripps  v.  Hartnoll,  Ex.  Ch. 
11  W.  R.  953. 

(/)  Goodman  v.  Chase,  1  Barn.  &  Aid.  297.  See,  also.  Lane  v.  Burghart,  1  Q.  B  933, 
E.  C.  L.  R.  vol.  41. 

(g)  Peter  «.  Compton,  Skin.  353;  1  Smith's  Leading  Cases,  142;  Souch  t;.  Strawbridge, 
2  C.  B.  808,  E.  C.  L.  R.  vol.  52. 

(A)  Wells  V.  Horton,  4  Bing.  40,  E.  C.  L.  R.  vol.  13. 

10 


146  OF   CHOSES   IN   ACTION. 

of  his  term  (of  which  several  years  were  unexpired),  it  was  held 
that  writing  was  unnecessary  ;{i)  for  although  the  tenant's  part  of 
the  agreement  was  not  to  be  performed  within  a  year,  the  land- 
lord's part  might  reasonably  have  been  *so.  These  decisions  have 
considerably  narrowed  the  operation  of  the  statute,  and  have  left 
remaining  much  of  the  mischief  arising  from  reliance  on  memory 
only,  which  it  was  the  intention  of  the  statute  to  obviate,  by  re- 
quiring written  evidence. (A;)  The  last  clause  of  the  enactment 
has  however  received  a  very  liberal  construction.  The  words 
are  "signed  by  the  party  to  be  cliargcd  therewith,  or  some  other 
person  thereunto  by  him  lawfully  authorized."  And  it  has  been 
held  that  any  insertion  by  the  party  of  his  name  in  any  part  of 
the  agreement  is  a  sufficient  signing  within  the  statute,(^)  pro- 
vided *the  name  be  inserted  in  such  a  manner  as  to  have  the  effect 
of  ^authenticating  the  instrument;(m)  and  it  is  not  neces- 
'-  -'  sary,  that  both  parties  should  sign  the  agreement.  The 
whole  of  the  agreement  must  be  contained  in  the  writing,  either 
expressly  or  by  reference  to  some  other  document,  but  the  writ- 
ing is  required  by  the  statute  to  be  signed  only  by  the  party  to 
be  charged.(?i)  And  as  a  "  memorandum  or  note"  of  the  agree- 
ment is  allowed,  a  writing  sufficient  to  satisfy  the  statute  may 
often  be  made  out  from  letters  written  by  the  party,(o)  or  from  a 
written  offer,  accepted,  without  any  variation, (p)  before  the  party 
offering  has  exercised  his  right  of  retracting ;((/)  and  when  cor- 
respondence is  carried  on  by  means  of  the  post,  an  offer  is  held  to 
be  accepted  from  the  moment  that  a  letter  accepting  the  offer  is 
put  into  the  post,  although  it  may  never  reach  its  destination. (r) 

The  seventeenth  section  of  the  Statute  of  Frauds,  which  relates 
to  contracts  for  the  sale  of  goods,  wares,  and  merchandise,  for  the 

<i)  Donellan  v.  Reid,  3  Barn.  &  Adol.  899,  E.  C.  L.  R.  vol.  23;  Cherry  v.  Heming,  4  Ex. 
Rep.  631. 

(k)   See  1  Smith's  Leading  Cases,  144  et  seq. 

(I)  Ogilvie  V.  Foljanibe,  3  Meriv.  62. 

(m)  Stokes  v.  Moor,  1  Cox,  219  ;  Selby  v.  Selby,  3  Meriv.  4,  6. 

(m)  Laythoarp  v.  Bryant,  2  Bing.  N.  C.  735,  742,  E.  C.  L.  R.  vol.  29.  See  Sugd.  Vend. 
&  Pur.  c.  4,  ss.  3,  4,  p.  102  et  seq.,  13th  ed. 

(o)  Owen  V.  Thomas,  3  My.  &  Keen,  353. 

(p)  Holland  V.  Eyre,  2  Sim.  &  Stu.  194 ;  Gibbons  v.  Northeastern  Metropolitan  Asylum 
District,  11  Beav.  1. 

{q)  Routledge  v.  Grant,  4  Bing.  653,  E.  C.  L.  R.  vol.  13  ;  S.  C.  1  Moo.  &  P.  717;  Gilkes 
V.  Leonino.  4  C.  B.  N.  S.  485,  E.  C.  L.  R.  vol.  93. 

(r)  Dunlop  V.  Higgins,  1  H.  of  L.  Cas.  381  ;  Duncan  v.  Topham,  8  C.  B.  225,  E.  C.  L. 
R.  vol.  65. 


OF    CONTRACTS.  147 

price  of  IQL  or  upwards,  lias  been  already  noticed(s^)  together 
with  the  clause  in  the  statute  of  Geo.  IV,  next  noticed,  called 
Lord  Tenterden's  Act,  by  which  this  enactment  has  been  ex- 
tended and  explained. (<) 

The  next  statute  which  requires  our  notice  is  entitled  "An 
Act  for  rendering  a  written  Memorandum  necessary  to  the  Valid- 
ity of  certain  Promises  and  Engagements,"  *and  is  com- 
monly called  Lord  Tenterden's  Act.(M)  By  this  statute  no  l  '8] 
acknowledgment  or  promise  by  words  only  can  take  any  case  of 
simple  contract  out  of  the  operation  of  the  Statute  of  Limita- 
tions,(a:)  or  deprive  any  party  of  the  benefit  thereof,  unless  such 
acknowledgement  or  promise  shall  be  made  or  contained  by  or  in 
some  writing  to  be  signed  by  the  party  chargeable  thereby.(?/) 
The  effect  of  such  a  promise  has  already  been  referred  to.(^) 
The  statute  makes  no  mention  of  any  signature  by  an  ao-ent; 
but  by  a  recent  statute  the  signature  of  an  agent  has  been  ren- 
dered sufiicient.(a)  And  no  joint  contractor  is  to  lose  the  bene- 
fit of  the  Statute  of  Limitations  by  reason  only  of  any  written 
acknowledgement  or  promise  made  and  signed  by  any  other  joint 
contractor;  but  nothing  therein  contained  is  to  alter,  or  take 
away,  or  lessen  the  eftect  of  any  payment  of  any  principal  or  in- 
terest made  by  any  person  whatsoever. (i)  However,  no  indorse- 
ment or  memorandum  of  any  payment  written  or  made  upon  any 
promissory  note,  bill  of  exchange,  or  other  writing,  by  or  on  be- 
half of  the  party  to  whom  such  payment  shall  be  made,  shall  be 
deemed  sufficient  proof  of  such  payment,  so  as  to  take  the  case 
out  of  the  operation  of  the  Statute  of  Limitation s.(c)  And  by  a 
recent  statute,  payment  of  any  principal  or  interest  by  a  co-con- 

(s)  Ante,  p.  37.  (u)   Stat.  9  Geo.  IV,  e.  14. 

(0  Stat.  9  Geo,  IV,  c.  14,  s.  7;  a?i.te,  p,  38.       {x)  Stat.  21  Jac.  I,  c.  16,  s.  3. 

(y)  See  Lechmere  v.  Fletcher,  1  Cro.  &  Mee.  623  ;  Bird  v.  Gammon,  3  Bincr.  N.  C.  883 
E.  C.  L.  R.  vol.  32  ;  Cheslyn  v.  Dalby,  4  You.  <fc  Coll.  238. 

(z)  Ante,  p.  72. 

(a)  Stat.  19  &  20  Vict.  c.  97,  s.  13. 

(A)  Stat.  9  Geo.  IV,  c.  14,  s.  1  ;  Whinman  v.  Kyninan,  1  E.>:.  Rep.  118  ;  Cleave  v.  Jones, 
6  Ex.  Rep.  573;  Bamfield  v.  Tupper,  7  Ex.  Rep.  27;  Fordham  v.  Wallis,  10  Hare,  217; 
Nash  V.  Hodgson,  1  Kay,  650  ;  Edwards  v.  Janes,  1  Kay  k  John.  534. 

(c)   Sect.  3. 


'  See  ante,  p.  38,  note  (1). 


148  OF   CHOSES   IN"   ACTION. 

tractor  or  co-debtor  will  not  deprive  a  debtor  of  the  benefit  of  the 
Statute  of  Limitation8.((/)  Lord  Tenterdeu's  Act  further  enacts, 
r*7Q"i  ^^  ^^®  been  already  mcntioned,(e)  that  no  action  *8hall 
'-  -'be  maintained  whereby  to  charge  any  person  upon  any 
promise  made  after  full  age  to  pay  any  debt  contracted  during 
infancy,  or  upon  any  ratification  after  full  age  of  any  promise 
or  simple  contract  made  during  infancy,  unless  such  promise  or 
ratification  shall  l)e  made  by  some  writing  signed  by  the  party  to 
be  charged  therewith.  And  now  the  signature  of  an  agent  is  suf- 
ficient.(/)  And  it  is  further  enacted, (^)  that  no  action  shall  be 
brought  whereby  to  charge  any  person  upon  or  by  reason  of  any 
representation  or  assurance  made  or  given  concerning  or  relating 
to  the  character,  conduct,  credit,  ability,  trade  or  dealings  of  any 
other  person,  to  the  intent  or  purpose  that  such  other  person  may 
obtain  credit,  money  or  goods  iqoon,  unless  such  representation  or  as- 
surance be  made  in  writing  signed  by  the  party  to  be  charged 
therewith.  There  appears  to  be  some  error  in  the  word  "  upoii'^ 
in  this  enactment,  which,  as  it  stands,  is  8uperfluous.(/i)  And  it 
has  been  doubted  whether  a  representation  made  to  a  purchaser 
by  the  trustee  of  some  property,  that  the  property  was  iucumber- 
ed  to  a  less  extent  than  was  actually  the  case,  was  a  representation 
concerning  the  abiUbj  of  the  vendor  within  the  meaning  of  the 
statute.(z)  The  better  opinion  seems  to  be,  that  such  a  represen- 
tation is  within  the  statute,  and  ought  consequently  to  be  obtained 
in  writing. 

In  addition  to  those  contracts  which  by  statute  are  required  to 
be  in  wi'iting,  there  exists  a  peculiar  class  of  contracts,  which  in 
their  nature  are  expressed  in  writing,  and  for  which  a  considera- 
tion is  presumed  to  have  been  given  till  the  contrary  is  proved. (A) 
These  are  bills  of  exchange  and  promissory  notes.(?)  A  bill  of 
^^  exchange  *is  a  written  order  from  one  person  to  another 
'-       -^   to  pay  to  a  third  person,  or  to  his  order,  or  to  the  bearer,  a 

(d)  Stat.  19  &  20  Vict.  c.  97,  s.  14,  not  retrospective  ;  Jackson  v.  Woolley,  8  E.  &  B.  784, 
E.  C.  L.  R.  vol.  92. 

(e)  Stat.  9  Geo.  TV,  c.  14,  a.  5,  ante,  p.  73.         (g)   Stat.  9  Geo.  IV,  c.  14,  s.  6. 
(/)   Stat.  19  &  20  Vict.  c.  97,  s.  13.  (/i)   See  1  Mee.  k  Wels    104,  123. 

(0   See  Lyde  v.  Barnard,  1  Mee.  &  Wells.  101;  Swann  v.  Phillips,  8  Ad.  &  Ell.  457,  E.  C. 
L.  R.  vol.  35. 

(yt)  See  Mills  v.  Barber,  1  Mee.  A  Wels.  425. 
(/)  See  Byles  on  Bills,  and  Bayley  on  Bills. 


OF   CONTRACTS. 


149 


certain  sum  of  money.  The  person  making  the  order  is  called  the 
di-awer,  the  person  on  whom  it  is  made  the  drawee,  and  the  person 
to  whom  the  money  is  payable  the  payee.  The  bill  is  sometimes 
made  payable  to  the  drawer  himself,  or  to  his  order,  or  to  him  or 
bearer.  If  the  person  on  whom  the  bill  is  drawn  undertakes  to 
pay  it,  he  writes  on  it  the  word  "  accepted,"^  with  his  signature, 
and  is  then  called  the  acceptor.  A  promissory  note,  or  note  of 
hand,  as  it  is  sometimes  called,  is  a  written  promise  from  one  per- 
son to  pay  to  another,  or  to  his  order,  or  to  bearer,  a  certain  sum 
of  money.  The  person  making  the  promise  is  called  the  maker  of 
the  note.  ISlo  negotiable  or  transferable  bill  or  note  can  be  law- 
fully drawn  or  made  for  any  sum  under  20s.;(nif  but  any  person 
may  now  draw  upon  his  banker,  who  shall  bona  fide  hold  money  for 
his  use,  any  draft  or  order  for  the  payment  to  the  bearer,  or  to 

{m)  Stat.  48  Geo.  Ill,  c.  88,  s.  2. 


1  The  word  "accepted,"  should,  in  accord- 
ance with  the  cu.stom  of  merchants,  be  written 
across  the  face  of  the  bill,  over  the  signature 
of  the  acceptor. 

2  Very  few  restrictions  of  this  nature  exist 
within  the  United  States,  and  even  in  those 
States  where  provisions  of  this  kind  are  in 
force,  they  have  a  view  rather  to  obtaining  a 
protest,  or  recovering  damages,  than  to  an 
absolute  prohibition.  Thus,  in  Alabama, 
"every  bill  of  exchange,  of  the  sum  of  $20 
and  upwards,  drawn  in,  or  dated  at,  or  from 
any  place  in"  the  State,  may  be  protested 
for  non-acceptance,  or  non-payment ;  Clay's 
Alaba.  Dig.  381 .  In  Maine,  "  if  a  bill  of  ex- 
change be  drawn,  accepted  or  indorsed,  .  .  . 
for  one  hundred  dollars  or  more,  and  payable 
in"  the  "  State,  at  a  place  seventy-five  miles 
distant  from  the  place  where  drawn,  the  dam- 
ages against  the  acceptor,  drawer,  orindorser, 
over  and  above  the  contents  of  the  bill  and 
interest,  shall  be  one  percent,  on  its  amount ;" 
Revis.  Stat,  of  Maine  (1857),  pp.  519,  520; 
and  a  similar  provision- exists  in  Massachu- 
setts; Revis.  Stats,  of  Ma.ss.  (1800),  p.  294. 
By  the  laws  of  New  Jersey,  bills  of  exchange 
drawn  within  the  State,  upon  any  person 
within  the  State,  for  eight  dollar.''  or  upwards, 
may  be  protested  for  non-acceptance  or  non- 
payment; Nixon's    Dig.  Ls.  N.  J.  (1855),  p. 


667.  But  two  of  the  States,  Massachusetts  and 
South  Carolina,  prohibit  the  negotiating  of 
notes  under  a  certain  sum,  the  first  limiting 
them  to  five  dollars,  under  a  penalty  of  fifty 
dollars  ;  and  the  latter  to  one  dollar,  under  a 
penalty  of  ten  dollars  ;  the  prohibition  in 
South  Carolina,  being  also  extended  to  bills 
of  exchange;  Revis.  Stats,  of  Mass.  (1860),  p. 
810  ;   Stats,  of  S.  C,  vol.  6,  p.  34. 

The  only  other  enactments  in  the  United 
States  having  any  reference  to  this  point,  are 
those  designed  to  prevent  the  issuing  of  notes, 
intended  to  perform  the  functions  of  currency, 
by  others  than  corporations,  specially  created 
by  authority  of  law,  with  this  power.  Thus, 
in  Pennsylvania,  by  the  2d  sec.  of  the  act  of 
March  22,  1817,  "No  incorporated  body, 
public  officer,  association  or  partnership,  or 
private  individual,  other  than  such  as  have 
been  expressly  incorporated  or  established 
for  the  purpose  of  banking,  shall  make,  issue, 
reissue  or  circulate,  any  promissory  note, 
ticket,  or  engagement  of  credit  in  the  nature 
of  a  banknote,  of  any  denomination  oramount 
whatsoever,"  &c.  ;  Purd  Dig.  (186] ),  p.  94, 
see.  59.  Similar  provisions  are  in  operation 
in  many  of  the  other  States;  Revis.  Stats,  of 
N.  Y.,  vol.  2,  p.  981  ;  Revis.  Stats,  of  Mass. 
(18(50),  p.  810  ;  Revis.  Stats,  of  Ohio  (1860). 
vol.  1,  pp.  152,  153. 


150 


OF   CHOSES   IN    ACTION. 


order  on  demand,  of  any  snni  of  money  less  than  20.9.(7?)  Bills 
and  notes  under  5^.  cannot  be  made  payable  to  bearer  on  demand, 
and  were  formerly  subject  to  other  stringent  restrictions,(o)'  which 


{n)  Stat.  23  &  24  Vict.  c.  Ill,  s.  19. 

(o)   Stat.  17  Geo.  Ill,  c.  30 ;   7  Geo.  IV,  cf  6,  s.  4. 


1  In  connection  with  the  subject  of  negotia- 
ble or  transferable  bills  or  notes,  the  recent 
English  case  of  Bellamy  et  al.  v.  Majoribanks 
et  al.,  7  Exch.  R.  389,  relative  to  crossed 
checks,  may  not  be  entirely  devoid  of  interest. 
The  plaintiffs  in  this  case,  "  were  trustees  of 
a  gentleman  named  Frank  ;  .  .  .  they  had 
opened  an  account  with  the  defendants, 
Messrs.  Coutts  &  Co.,  for  the  purpose  of  the 
trust.  A  suit  was  pending  in  the  Court  of 
Chancery  with  reference  to  the  trust,  in  which 
Mr.  Triston  acted  as  solicitor  for  the  plain- 
tiffs. The  other  parties  to  the  suit  were  the 
next  of  kin  of  Mr.  Frank,  and  a  Mr.  Geary 
acted  as  solicitor  for  them.  In  June,  1845, 
Mr.  Geary  brought  to  Mr.  Triston  a  check 
upon  Messrs.  Goutts,  written  out  by  him,  for 
2596/.  17*.,  to  be  signed  by  the  plaintiffs.  It 
was,  when  delivered  to  Mr.  Triston,  in  the 
common  form.  Mr.  Triston  sent  the  check 
to  the  plaintiff,  Mr.  Bellamy,  at  Brighton, 
who  returned  it  signed,  with  the  following 
addition  in  his  own  handwriting,  namely,  at 
the  end  of  the  body  of  the  check,  the  words  : 
'General  unpaid  costs  account,'  and  crossed 
as  follows,  '  Bank  of  England,  for  account  of 
Accountant-General.'  Mr.  Triston  then  sent 
it  to  the  other  trustee  (the  plaintiff,  Mr. 
Foster),  to  be  signed  by  him,  and  having  re- 
ceived it  back,  delivered  it  to  Geary.  In 
point  of  fact,  the  department  of  the  Bank  of 
England,  in  which  the  business  of  the  Ac- 
countant-General  is  conducted,  would  not 
have  received  this  check,  it  being  the  rule 
not  to  receive  any,  except  one  drawn  on  the 
Bank  of  England  itself:  and  this  rule  is  well 
known  among  the  London  bankers.  Upon 
the  day  on  which  Geary  received  the  check, 
he  struck  out  the  cro.«sing  made  by  Mr.  Bel- 
lamy, by  running  a  jien  through  it,  leaving 
it,  however,  perfectly  legible,  and  crossed  the 
check  a  second  time,  with  the  name  of  Messrs. 
Gossling  &  Co.,  his  own  bankers,  and  paid 
it  into  their  bank,  to  the  credit  of  his  own 
account.     Upon  the  following  day,  the  clerk 


of  Messrs.  Gossling  presented  it  for  payment 
at  Messrs.  Coutts  &  Co.,  who  paid  it,  and 
charged  it  to  the  debit  of  the  plaintiffs'  ac- 
count. The  money  was  placed  by  Messrs. 
Gossling  to  the  credit  of  Geary,  in  his  own 
account  with  them.  He  never  paid  the 
money  to  the  Accountant-GeneraJ,  and  the 
plaintiffs  were  obliged  to  make  it  good.  The 
following  is  a  copy  of  the  check,  as  produced 
at  the  trial." 


London, 

Messrs.  Coutts  & 
Pay  to  Edward 
Bearer,  two  thou- 
and  ninety  -  six 
shillings  (General 
count.) 
£2596:  17:  0. 


June  23,  1845. 

Co. 

Bryant  Geary,  or 
sand  five  hundred 
pounds,  seventeen 
unpaid  Costs  Ac- 

Thos.  C.  Bellamy. 
Chas.  J.  Foster. 


Parke,  B.  "  Where  a  check  is  crossed, 
bankers  generally  refuse  to  pay  it  to  any  one 
except  a  banker ;  and  if  they  do  pay  it  to  a 
person  not  a  banker,  they  consider  that  they 
do  it  at  their  peril,  in  the  event  of  the  party, 
to  whom  the  payment  was  made,  not  being 
entitled  to  receive  it.  That  the  object  is  to 
secure  the  payment,  not  to  any  particular 
banker,  but  to  a  hanher,  in  order  that  it  may 
be  easily  traced,  for  whose  use  the  money 
was  received  ;  and  that  it  was  not  intended 
thereby,  to  at  all  restrict  the  negotiability  or 
circulation  of  the  check,  but  merely  to  compel 
the  holder  to  present  it  through  a  quarter  of 
known  respectability  and  credit.  We  are 
strongly  inclined  to  think  that,  on  a  full  in- 
quiry, the  usage  will  turn  out  to  be  no  more 
than  this  ;  and,  considering  the  custom  in  this 
point  of  view,  the  crossing  is  a  mere  memo- 
randum on  the  face  of  the  check,  and  forms  no 
part  of  the  instrument  itself,  and  in  no  way  al- 
ters its  effect.  There  can  be  no  doubt  that  such 
a  usage  is  highly  beneficial  to  the  public. 
These  instruments  are,  in  their  essential  char- 


OF   CONTRACTS.  151 

are  now  repealed  for  three- years  from  the  28th  of  July,  1863,  and 
until  the  end  of  the  then  next  session  of  Parliament.  (2>)  Bills  and 
notes  payable  to  bearer  on  demand  are  also  prohibited  from  being 
issued  by  bankers,  except  by  the  banks  and  under  the  restrictions 
mentioned  in  the  act  passed  to  regulate  the  issue  of  bank  notes.(g') 
Bills  or  notes  payable  to  A.  B.  or  order  are  transferable  by  a 
written  order  indorsed  thereon  by  A.  B.  The  mere  signature  by 
A.  B.  of  his  name  on  the  back,  followed  by  his  delivery  of  the  bill 
or  note, (r)  is  however  sufficient  *for  this  pupose.  This  is 
called  an  indorsement  in  blank;  and  after  such  an  indorse-  •-  -I 
ment,  the  bill  or  note,  together  with  the  right  to  sue  upon  it,  may 
be  transferred  by  mere  delivery.(5)  Any  holder  of  the  bill  may, 
consequently,  after  such  an  indorsement,  enforce  payment  to  him- 
self The  indorsement  may,  however,  be  special,  as  "Pay  C.  D. 
or  order,  A.  B."  And  in  this  case  the  bill  or  note,  in  order  to 
become  transferable,  must  be  indorsed  by  C.  D.  But  if  a  bill  be 
once  indorsed  in  blank,  it  will  always  be  payable  to  the  bearer  by 
any  of  the  parties  thereto,  although  it  may  subsequently  be  spe- 
cially indorsed;  but  the  special  indorser  will  not  be  liable  to  the 
bearer  without  the  indorsement  of  the  person  to  whom  he  has 
specially  indorsed  it.(^)^  A  bill  or  note  payable  to  bearer  is  trans- 
ferable by  mere  delivery  without  any  indorsement. 

(p)  Stat.  26  &  27  Vict.  c.  105.  (r)   Bromage  v.  Lloyd,  1  Ex.  Rep.  32. 

(?)  Stat.  7  &  8  Vict.  c.  32,  ss.  10,  11.  (s)  Peacock  v.  Rhodes,  2  Doug.  333. 

(0   Smith  V.  Clarke,  1  Peake,  295  ;  Walker  v.  Macdonald,  2  Ex.  Rep.  527. 


acter,  payable  to  bearer,  they  are  in  many  through  a  banker,  as  a  condition  precedent, 

respects  treated  as  bank  notes It  is  but  he  ought  not  to  complain  if  the  drawee 

manifestly,  therefore,  a  great  safeguard  and  does  not  pay  without  previous  inquiry, 
protection  to  the  real  owner,  that  there  should  There  is  really  no  restriction  upon  its  nego- 
exist  the  means  of  tracing  and  ascertaining,  liability  ;  but  it  is,  in  our  opinion,  a  reasona- 
for  whose  use  the  money  paid  on  the  check  is  ble  and  lawful  practice  and  usage,  in  order 
received,  and  to  whom  the  money  actually  to  secure,  as  far  as  possible,  payment  of 
goes  ;  and  the  payment  through  a  banker  se-  checks  to  honest  and  l>07ia  fide,  holders." 
cures  this  object.  ...  We  think  there  is  no  i  But  the  holder  of  a  note  indorsed  in 
legal  objection  to  the  custom,  if  thus  limited,  blank,  may  fill  it  up  with  any  contract  consis- 
and  understood,  upon  the  ground  of  its  being  tent  with  the  character  of  an  indorsement  ; 
repugnant  to  the  essential  quality  of  a  check,  Byles  on  Bills,  Am.  ed.  p.  116,  note  2; 
namely,  its  negotiability  by  delivery.  There  Caruth  v.  Thompson,  16  B.  Mon.  R.  572  ,• 
i8  no  obligation  upon  any  one  to  receive  pay-  Webster  ?A  Cobb.  17  III.  R.  459;  Watkins 
ment  by  a  check,  whether  it  be  crossed  or  v.  Kirkpatrick,  2  Dutch.  R.  84  ;  Becker  v. 
not  crossed  ;  but  if  a  man  receive  a  crossed  Levy,  2  Am.  L.  Reg.  444.  But,  see,  Newell  v, 
check,  he  .seems  to  us,  not  indeed  to  incur  Williams,  5  Sneed's  R.  208. 
the  obligation  of  presenting  it  for  payment 


152  OF  cnosES  in  action. 

The  effect  of  accepting  a  bill,  or  making  a  promissory  note,  is 
to  render  the  acceptor  or  maker  primarily  liable  to  pay  the  same 
to  the  person  entitled  to  require  payment.  The  effect  of  drawing 
a  bill  is  to  make  the  drawer  liable  to  payment,  if  the  acceptor 
make  default.  But  in  order  to  charge  the  drawer  of  a  foreign 
bill,  it  must,  by  the  custom  of  merchants,  be  protested  by  a 
notary  public. (i<)  This  protest  is  a  declaration  by  him  in  due 
form  that  payment  has  been  demanded  and  refused.  A  protest, 
however,  is  unnecessary  for  an  inland  bill  or  promissory  note.(a:) 
The  efl'ect  of  indorsing  a  bill  or  note  is  to  make  the  indorser  also 
liable  to  payment,  if  the  acceptor  of  the  bill  or  maker  of  the  note 
should  make  default.  The  indorsement  operates  as  against  the 
indorser  as  a  new  drawing  of  the  bill  by  *him,(?/)  An 
'-  "-'  indorsement,  however,  may  be  made  without  recourse  to 
the  indorser,  or  "  sans  recours,"  as  it  is  generally  expressed,  in 
which  case  the  indorser  avoids  all  personal  liability.(^)  The 
drawer  of  a  bill,  or  the  indorser  of  a  bill  or  note,  will,  however, 
be  discharged  from  all  liability,  unless  the  person  requiring  pay- 
ment should,  within  a  reasonable  time,  give  him  notice  that  the 
bill  or  note  has  not  been  paid,  or,  as  it  is  termed,  has  been  dis- 
honored, and  give  him  to  understand,  either  expressly  or  by 
implication,  that  he  looks  to  him  for  payment.(a)  In  consequence 
of  a  consideration  being  presumed  to  have  been  given  for  every 
bill  or  note  till  the  contrary  is  shown,  it  follows,  that  if  a  bill  or 
note  should  have  been  drawn,  accepted  or  indorsed  without  any 
consideration,  or  for  a  consideration  which  is  illegal,  a  bona  fide 
holder  for  valuable  consideration,  or  any  indorsee  from  him,  may, 
nevertheless,  enforce  payment ;  for  when  he  took  the  security, 
he  was  entitled  to  rely  on  the  legal  presumption  of  a  proper  con- 
sideration having  been  given. (6)^     It  is  stated  by  Sir  William 

(h)   Gale  V.  Walsh,  5  T.  Rep   239. 
(x)   Windle  v.   Andrews,  2  Barn.  &  Aid.  696. 
(y)   Penny  r.   Innes,  1  Cro.  Mee.  &  Rose.  441. 
(z)  Byles  on  Bills,  117,  6tli  ed. 

(a)  Hartley  v.  Case,  4  Barn.  <fc  Cress.  3.39,  E.  C.  L.  R.  vol.  10  ;  Byles  on  Bills,  213  fit  see/., 
6th  ed. 

(b)  Collins  V.  Martin,  1  Bos.  &  Pull.  651 ;  Morris  v.  Lee,  Bayley  on  Bills,  500  ;  Robinson 
V.  Reynolds,  2  Q.  B.  196,  E.  C.  L.  R.  vol.  42;  May  v.  Chapman,  16  M.  &  W.  355. 


1  In  general,  accommodation  paper,  as  be-  struments  founded  upon  a  valuable  considera- 
tween  others  than  the  original  parties  to  it,  is  tion  :  Brown  v.  Fort,  1  Mart.  K.  34  ;  Ilarrod  v. 
to  be  governed  by  the  rules  of  negotiable  in-    Lafarge,  12  Id.  21  ;  Dorsey  v.  Their  Creditors, 


OF   CONTRACTS. 


153 


Black8tone,(c)  "that  every  note,  from  tlie  subscription  of  the 
drawer,  carries  with  it  an  internal  evidence  of  a  good  consider- 
ation," This,  however,  appears  to  be  a  mistake.  The  law  does 
not  give  this  effect  to  bills  of  exchange  and  promissory  notes  in 
respect  of  the  undertaking  being  evidenced  by  writing,  but  in 
order  to  strens:then  and  facilitate  that  commercial  intercourse 
which  is  carried  on  through  the  medium  of  such  securities. (<i) 


,  (c)  2  Black.  Comm.  446. 


(d)   1  Fonbl.  Eq.  343,  344. 


7  New  Series  (La.),  12;  Church  v.  Barlow, 
9  Pick.  R.  549  ;  Commercial  Bank  v.  Cun- 
ningham, 24  Id.  276  ;  Quinn  v.  Fuller,  7 
Metcf.  R.  225  ;  Perry  v.  Green,  4  Harrison's 
P..  61  ;  Jackson  v.  Richards,  2Caines'  R.  243; 
Grandin  v.  Le  Roy,  3  Paige's  R.  509  ;  Clop- 
per's  Admr.  v.  the  Union  Bank,  7  Har.  & 
Johns.  R.  103  ;  Lathrop  v.  Morris,  5  Sandf. 
Super.  C.  R.  9  ;  Appleton  v.  Donaldson,  3  Pa. 
St.  R.  381 ;  Snyder  v.  Wilt,  15  Pa.  St.  R.  65  ; 
Bank  of  Montgomery  Co.  v.  Walker,  9  Serg. 
&  Raw.  R.  229  :  Aiken  v.  Catheart,  3  Richard. 
L.  R.  133  ;  Holmes  v.  Paul,  6  Am.  L.  Reg. 
482  ;  S.  C,  3  Grant's  Cases,  299  ;  Yates  v.  Don- 
aldson, 5  Md.  R.  389  ;  Zellweger  v.  Gaffe,  5 
Duer's  R.  87;  Robinsf .  Richardson,  2  Bosw.  R. 
248  ;  Work  v.  Kase,  34  Pa.  St.  R.  138  ;  Postt-. 
Tradesmen's  Bk.,  28  Conn.  R.  420;  Struthers 
V.  Kendall  etal.,  41  Pa.  St.  R.  214  ;  and  even 
where  the  holder  of  the  paper,  knowing  that  it 
has  been  given  or  accepted  for  the  accommoda- 
tion of  the  indorser  or  drawer,  gives  time  to 
such  indorser  or  drawer,  the  maker  or  acceptor 
is  not  thereby  discharged  ;  for,  having  put  him- 
self on  the  paper,  as  principal  debtor,  he  is  not 
entitled  to  the  privileges  of  a  surety,  as  be- 
tween himself  and  strangers;  Bank  of  Montgo- 
mery V.  Walker,  9  Serg.  &  Raw.  R.  229,  S.  C. 
12  Id.  382  ;  White  v.  Hopkins,  3  Wat.  &  Serg. 
R.99;  Lewis  v.  Hauchman,  2  Pa.  St.  R.  416  ; 
Foard  v.  Womack,  use,  Ac,  2  Alaba.  R.  368  ; 
Tarver  v.  Nance,  5  Id.  712  ;  French  v.  Bank 
of  Columbia,  4  Cranch's  R.  153  ;  Parks  et  al. 
V.  Ingram  etal.,  2  Fost.  R.  281  ;  J.  A  T.  Pow- 
ell V.  Waters,  17  Johns.  R.  176  ;  Murrah  et 
al.  V.  Judah,  6  Cow.  R.  484  ;  Commercial 
Bank  of  Albany  v.  Hughes,  17  Wend.  R.  94  ; 
Love  et  al.  v.  Brown  et  al.,  38  Pa.  St.  R.  308  ; 
Ross  V.  Bedell,  5  Duer's  R  462  ;  Howard  v. 
Welchman,  6  Bosw.  R.  280  ;  but  see  Clop- 
per's  Admr.  v.  The  Union  Bank,   7  Har.  & 


Johns.  R.  103;  Perry  v.  Green,  4  Harrison's  R. 
61.  But  this  proposition  is  subject  to  certain 
modifications  for, — First,  where  a  bill  is  drawn 
for  the  accommodation  of  the  drawer,  or  in- 
dorser, he  for  whose  benefit  it  is  drawn,  is 
not  entitled  to  notice  of  non-acceptance  or 
non-payment ;  Armstrong  et  al.  v.  Gray,  1 
Stew.  R.  175  ;  Evans'  Admr.  v.  Norris  et  al., 

1  Alaba.  R.  511  ;  Foard  v.  Womack,  use,  Ac, 

2  Id.  368  ;  Tarver  v.  Nance,  5  Id.  712  ;  Shir- 
ley-y.  Fellows  et  al.,  9  Porter's  (Alaba.)  R. 
300  ;  Holman  v.  Whiting,  19  Alaba.  R.  704 ; 
French  v.  The  Bank  of  Columbia,  4  Cranch's 
R.  153  ;  Gillespie  et  al.  v.  Cammack  et  al.,  3 
La.  An.  R.  248;  Clopper's  Admr.  v.  The 
Union  Bank,  7  Har.  A  Johns.  R.  103  ;  Hoff- 
man V.  Smith,  1  Caines'  R.  160  ;  Commercial 
Bank  of  Albany  v.  Hughes,  17  Wend.  R.  94; 
Deny  v.  Palmer,  5  Ired.  L.  R.  610  ;  Farmer's 
Bank  v.  Vanmeter,  4  Rand.  R.  553  ;  Reid  v. 
Morrison,  2  Wat.  A  Serg.  R.  406  ;  Ross  v. 
Bedell,  6  Duer's  R.  462.  Secondly,  whore  one 
has  paid  value  for  an  accommodation  bill  or 
note,  he  may  recover  upon  it,  even  though  he 
took  it  with  the  knowledge,  that  it  was  drawn 
for  the  accommodation  of  one  or  more  of  the 
parties  ;  Townsley  v.  Sumrall,  2  Pet.  R.  183  ; 
Lambest  v.  Sandford,  2  Blackf.  R.  137  ;  Eld- 
ridge  V.  Duncan,  1  B.  Mon.  R.  102  ;  Reawick 
V.  Williams.  2  Md.  R.  363  ;  Brown  v.  Mott, 
7  Johns.  R.  361  ;  Murrah  et  al.  v.  Judah,  6 
Cow.  R.  484  ;  Grant  et  al.  v.  Ellicott,  7 
Wend.  R.  227  ;  Perry  et  al.  v.  Crammond  et 
al.,  1  Wash.  Cir.  Ct.  R.  100;  Pierson  v. 
Boyd,  2  Duer's  R.  33  ;  Steckel  v.  Steckel,  28 
Pa.  St.  R.  235  :  Pettigrew  v.  Chave,  2  Hil- 
ton's R.  546;  but  this  principle  has  been  con- 
tradicted in  Brown  v.  Fort,  1  Mart.  R.  34  ; 
Commercial  Bank  v.  Cunningham,  24  Pick, 
R.  276,  and  tiuinn  v.  Fuller,  7  Metcf.  R.  225. 
And  Bee  Rochester  v.  Taylor,  23  Barb.  R.  18 


154  OF    CliOSES   IN    ACTION. 

On  this  ground  the  law  allows  these  instruments  to  form  an 
exception  to  the  general  rule,  that  a  consideration  must 
^  -'  *be  shown  for  every  agreement,  although  evidenced  by- 
writing.  The  remedies  on  bills  of  exchange  and  promissory 
notes  have  been  facilitated  by  a  recent  act.(c) 

We  now  come  to  the  second  class  of  contracts,  namely,  special 
contracts,  or  contracts  by  deed.  These  contracts  diifer  from  mere 
simple  contracts  in  the  following  important  particular,  that  thdy 
of  themselves  import  a  consideration,(/)  whilst  in  simple  contracts 
a  consideration  must  be  proved.  For  the  law  presumes  that  no 
man  will  put  his  seal  to  a  deed  without  some  good  motive. (17)  And 
when  an  airreement  is  once  embodied  in  a  deed,  such  deed  becomes 
itself  the  agreement,  and  not  evidence  merely,  as  is  the  case  when 
a  parol  agreement  is  reduced  to  writing.  On  this  principle  it  ap- 
pears to  be  that,  after  a  deed  has  been  executed,  any  alteration, 
erasure  or  addition  made  in  a  material  point,  even  by  a  stranger, 
will  render  the  deed  void  ;  and  any  alteration  made  by  the  party 
to  whom  it  is  delivered,  although  in  words  not  material,  will  also 
render  it  void.(A)^     It  is  true  that  by  recent  decisions(?)  this  doc- 

(e)  Stat.  18  &  19  Vict.  c.  67.  The  stamps  on  bills  and  notes  are  now  regulated  by  stats. 
17  &  18 .Vict.  c.  83,  23  Vict.  c.  15,  and  23  &  24  Vict.  c.  lll-O 

(/)   1  Fonbl.  Eq.  342. 

(g)  See  Principles  of  the  Law  of  Real  Property,  118,  2d  ed.  ;  123,  3d  &  4th  eds. ;  128,  5tli 
ed.  ;  134,  6th  ed. 

(k)   Pigot's  Case,  11  Rep.  27  a. 

(J)  Davidson  v.  Cooper,  13  Mee.  &  Wels.  343,  352;  Mollett  v.  Wackerbarth,  5  C.  B.  181, 
E.  C.  L.  R.  vol.  50. 


1  The  law  of  the  United  States  of  America,  stranger;  and  the  court  decided,  upon  view 
in  relation  to  stamps  on  bills  and  promissory  of  the  instrument,  whether  it  should  be  re- 
notes,  will  be  found  in  a  schedule,  at  the  end  ceived  or  rejected.  In  this  country,  the  doc- 
of  sec.  170,  of  an  act  of  Congress,  approved  trine,  that  an  alteration,  when  made  by  a 
March  3,  1865,  entitled  "An  act  to  amend  stranger,  vitiates  the  document,  is  not  sanc- 
an  act,  entitled,  '  An  act  to  provide  internal  tioned.  It  is  now  the  general  opinion,  that 
revenue,  to  support  the  government,  to  pay  a  material  alteration  in  any  instrument  of 
interest  on  the  public  debt,  and  for  other  pur-  writing,  will  avoid  it,  if  made  by  one  of  the 
poses,'  approved,  June  thirtieth,  eighteen  parties  to  the  contract,  or,  if  it  be  unex- 
hundred  and  sixty-four;"  and  commonly  plained  ;  for  then  it  is  presumed,  that  it  was 
known  as  the  Internal  Revenue  Act.  made  by  the  party  having  it  in  his  custody; 

2  The  ancient  English  doctrine  on  the  sub-  Steele's  Lessee  v.  Spencer  et  al.,  1  Pet.  R. 
ject  of  erasures,  alterations,  or  interlinea-  660  ;  Inglish  et  al.  v.  Breneman,  5  Ark.  R. 
tions,  undoubtedly  was,  that  the  slightest  377;  Shelton  v.  Deering,  10  B.  Mon.  R.  407 ; 
change  in  any  instrument  of  writing,  subse-  Letcher  v.  Bates,  6  J.  J.  Marsh.  R.  525; 
quently  to  its  execution,  avoided  it,  whether  Smith  v.  Crooker  et  al.,  5  Mass.  R.  538; 
the  alteration  was  made  by  a  party,  or  by  a  Ford  v.  Ford,  17  Id.  418  ;  Bowers  v.  Jewell, 


OF   CONTEACTS. 


155 


trine  lias  been  extended  to  a  mere  written  agreement.     But  al- 
though it  is  no  doubt  highly  important  that  all  legal  instruments 


2  N.  H.  R.  543  ;  Vanauken  v.  Hornbeck,  2 
Green's  R.  179  ;  Jackson  v.  Malin,  15  Johns. 
R.  293  ;  Woodworth  v.  Bank  of  America,  19 
Id.  391;  Vanhorne  v.  Dorrance,  2  Dal.  R. 
306  ;  Heuning  z\  Workheiser,  8  Pa.  St.  R. 
518  ;  Van  Amringe  v.  Morton,  4  Whart.  R. 
382 ;  Maise  v.  Garner,  Mart.  &  Yerg.  R. 
383;  Newell  v.  Mayberry,  3  Leigh's  R.  250; 
Adams  et  al.  v.  Frye,  3  Metcf.  R.  103;  Bank 
of  U.  S.  V.  Russell  et  al.,  3  Yates  R.  391  ; 
Stephens  v.  Graham  et  al..  7  Serg.  &  Raw. 
R.  505  ;  Wade  v.  Withington,  1  Allen's  R. 
561;  Burnhan  v.  Ayer,  35  N.  H.  R.  351; 
Heffner  v.  Wenrich,  32  Pa.  St.  R.  423; 
Southwark  Bank  v.  Gross,  35  Id.  80  ;  and 
this  is  so,  even  though  it  appears  that  the 
alteration  was  honestly  made,  for  the  purpose 
of  correcting  a  mistake  ;  Miller  v.  Gilleland, 
19  Pa.  St.  R.  120  ;  Getty  v.  Shearer,  1  Am. 
L.  Reg.  119,  S.  C.  20  Pa.  St.  R.  12  ;  Fay  v. 
Smith,  1  Allen's  R.  477;  but  an  immaterial 
alteration  will  not  vitiate,  unless  it  be  made 
by  one  of  the  parties  to  the  instrument  al- 
tered ;  Johnson  v.  Bank  of  U.  S.,  2  B.  Mon. 
R.  310  ;  Bank  of  Limestone  v.  Penick,  5  Id. 
29  ;  Wright  v.  Wright  et  al.,  2  Halst.  R.  175  ; 
Jackson  i;.  Malin,  15  Johns.  R,  293;  Morris's 
Lessee  v.  Vanderen,  1  Dal.  R,  67;  Herdman 
V.  Bratten,  2  Harring.  R.  396  ;  Vanauken  v. 
Hornbeck,  2  Green's  R.  179  ;  Moore  v.  Bick- 
ham  et  al.  4  Bin.  R.  1. 

In  accordance  with  this  general  rule  on 
the  subject  of  material  alterations,  it  has 
been  held,  that  one  who  claims  under  an  in- 
strument, which  appears  on  its  face  to  be 
altered,  is  bound  to  explain  the  alteration  ; 
United  States  v.  Linn  et  al.  1  How.  (U.  S.) 
R.  104  ;  Newcomb  v.  Presbrey,  8  Metcf.  R. 
406;  Geilett  v.  Sweat,  1  Gilm.  R.  475; 
Humphreys  v.  Guillou  et  al  ,  13  N.  H.  R. 
385  ;  Acker  v.  Ledyard,  8  Barb.  Supr.  C.  R. 
514  ;  Barrington  et  al.  v.  The  Bank  of  Wash- 
ington, 14  Serg.  &  Raw.  R.  405  ;  Adams  et 
al.  V.  Frye,  3  Metcf.  R.  103;  Hill  v.  Cooley, 
46  Pa.  St.  R.  259;  Paine  v.  Ed.sell.  19  Pa. 
St.  R.  178;  Huntington  v.  Finch,  3  0.  R. 
(N.  S.)  445  ;  and  that  a  substantial  erasure, 
is  presumed  to  be  false  or  forged,  and  must 
be  accounted  for  before  the  writing  can  be 


given  in  evidence  ;  McMicken  v.  Beauchamp, 
2  La.  R.  290  ;  Fletcher  et  al.  v.  Cavelier  et 
al.,  4  Id.  270  ;  Slocumb  et  al.  v.  Watkins,  1 
Rob.  R.  214  ;  Chelsey  v.  Frost,  1  N.  H.  R. 
145;  Hills  V.  Barnes  et  al.,  11  Id.  395; 
Jackson  v.  Osborn,  2  Wend.  R.  555  ;  HeflFel- 
finger  v.  Shutz  et  al.,  16  Serg.  &  Raw.  R. 
46;  Prevost  v.  Gratz  et  al.,  1  Pet.  C.  C.  R. 
364 ;  and  also,  that  where  one  offering  a  deed, 
proves  as  part  of  his  evidence,  that  the  deed 
has  been  fraudulently  altered  by  h\£;^Jt  will 
be  rejected ;  Babb  v.  Clemson,  10  Serg.~&' 
Raw.  R.  419.  On  the  other  hand,  it  has 
been  decided,  that  where  an  instrument  is 
altered  against  the  interest  of  the  party 
claiming  under  it,  the  law  will  not  presume 
that  the  alteration  was  improperly  made, 
but  the  jury  must  determine  the  matter  from 
all  the  circumstances  of  the  case ;  Bailey  v. 
Taylor,  11  Conn.  R.  531;  Whitmer  v.  Frye, 
10  Misso.  R.  348  ;  Farlee  v.  Farlee,  1  Zabr. 
R.  280  ;  Heffelfinger  v.  Shutz  et  al.,  16  Serg. 
&  Raw.  R.  46.  Nor  is  a  party  bound  to  ex- 
plain an  alteration,  when  it  does  not  appear 
on  the  face  of  the  deed,  but  is  alleged  by 
the  opposite  party  ;  United  States  i>.  Linn  et 
al.,  1  How.  (U.  S.)  R.  104;  so  also,  if  there 
is  no  suspicion  leading  to  ihe  belief,  that  the 
alterations  were  made  subsequent  to  the  ex- 
ecution, it  will  be  presumed  that  they  were 
made  before;  Whitsell  v.  Womaek,  use,  <fec., 
8  Alab.  R.  482  ;  Farlee  v.  Farlee,  1  Zabr.  R. 
280  ;  Cumberland  Bank  v.  Hall,  1  Halst.  R. 
213;  Sayre  v.  Reynolds  et  al.,  Admr.,  2 
Southard's  R.  737  ;  Bank  v.  Sears,  4  Gray's 
R.  95  ;  Stover  v.  Ellis,  6  Ind.  R.  182. 

As  regards  immaterial  alterations,  it  has 
been  held,  that  where  it  is  so  trivial,  as  not 
to  affect  in  the  slightest  manner,  the  meaning 
of  the  original  instrument,  it  will  not  vitiate 
it,  even  though  the  alteration  has  been  done 
by  one  of  the  parties  ;  Nichols  v.  Johnson, 
10  Conn.  R.  192  ;  Shelton  v.  Deering,  10  B. 
Mon.  R.  407  ;  Hunt  v.  Adams,  6  Mass.  R. 
519;  Bowers  v.  Jewell,  2  N.  11.  R.  543; 
Morril  v.  Otis,  12  Id.  466;  Griffith  v.  Cox, 
Tenn.  R.  210  ;  Barrabine  et  al.  v.  Bradhears, 
5  Mart.  R.  190;  Hale  v.  Ru.ss,  1  Greenlf.  R. 
334;    Brown  v.  Piiikham,   18  Pick.   R.   172; 


156 


OF    CHOSES   IN   ACTION. 


should  be  preserved  in  their  integrity,  it  may  perhaps  be  doubted 
whether  the  doctrine  in  question  would  ever  have  existed,  had 


Knapp  V.  Maltby,  13  Wend.  R.  587;  Miller 
V.  Read,  3  Grant's  Cases,  52  ;  Dunn  v.  Clem- 
ents, 7  Jones's  L.  R.  58  ;  Martin  v.  Good,  14 
Md.  R.  398.  When  an  immaterial  alteration 
has  been  made  by  a  stranger,  it  will  not 
vitiate  a  deed  ;  Lewis  et  al.  v.  Payne,  8  Cow. 
R.  71 ;  Wright  v.  Wright  et  al.,  2  Halst.  R. 
175;  Jackson  v.  Malin,  15  Johns.  R.  293, 
and  other  cases  cited  above  ;  and  even  a  sub- 
stantial erasure,  if  proven  to  have  been  done 
by  a  third  person,  without  the  connivance  of 
either  of  the  parties,  is  not  material  ;  Soli- 
bellas  V.  Reeves,  Curator,  3  La.  R.  55  ;  Far- 
lee  V.  Farlee,  1  Zabr.  R.  280  ;  Rees  v.  Over- 
baugh,  6  Cow.  R.  746  ;  Lewis  et  al.  v.  Payne, 
8  Id.  71 ;  Smith  v.  Dunham,  8  Pick.  R.  246  ; 
Ford  V.  Ford,  17  Id.  418  ;  Arrison  v.  Harm- 
stead,  2  Pa.  St.  R.  191  ;  Boyd  v.  McConnell, 
10  Hump.  R.  68;  Croft  v.  White,  36  Missi. 
R.  455. 

The  current  of  the  decisions  geems  to  show, 
that  an  erasure  in  a  deed,  does  not  make  it 
ipso  facto  void  ;  such  an  alteration  will  not 
render  an  instrument  invalid,  unless  it  was 
done  under  circumstances  which  the  law  does 
not  allow ;  Speake  et  al.  v.  The  United 
States,  9  Cranch's  R.  28  ;  Ravisies  v.  Allston, 
5  Ala.  R.  30]  ;  Whitsell  v.  Womack,  use, 
Ac,  8  Id.  482  ;  Gooch  v.  Bryant,  1  Shep.  R. 
386;  Wickes's  Lessee  v.  Caulk,  5  Har.  & 
Johns.  R.  36  ;  Stewart  v.  Preston,  1  Florida 
R.  10  ;  Wicker  v.  Pope,  12  Rich.  L.  R.  387  ; 
Vickery  v.  Benson,  26  Geo.  R.  582  ;  Farns- 
worth  V.  Sharp,  4  Sneed's  R.  55.  Whether 
an  erasure  has  been  made,  or  not,  and  if  so, 
when  it  was  made,  and  with  what  intention 
or  motive,  are  questions  for  the  determina- 
tion of  a  jury  ;  Steele's  Lessee  v.  Spencer  et 
al.,  1  Pet.  R.  560  ;  Gellett  v.  Sweat,  1  Gilm. 
R.  475  ;  Bowers  v.  Jewell,  2  N.  H.  R.  543 ; 
Hills  V.  Barnes  et  al.,  11  Id.  395;  Cumber- 
land Bank  v.  Hall,  1  Halst.  R.  213  ;  Sayre  v. 
Reynolds  et  al.,  Adrars.,  2  South.  R.  737  ; 
Jackson  v.  Osborn,  2  Wend.  R.  555  ;  Acker 
V.  Ledyard,  8  Barb.  Supr.  C.  R.  514  ;  Heffel- 
finger  v.  Shutz  et  al.,  16  Serg.  k  Raw.  R.  46  ; 
Hudson  V.  Reel,  5  Pa.  St.  R.  279  ;  Vanhorn 
V.  Dorrance,  2  Dal.  R.  306  ;  Marshall  et  al. 
V.  Gougler,  10  Serg.  &  Raw.  R.  164;   Sigfried 


V.  Swan,  6  Id.  312  ;  Barrington  et  al.  v.  The 
Bank  of  Washington,  14  Id.  405  ;  Stevens  v. 
Martin,  18  Pa.  St.  R.  101 ;  Jordan  v.  Stew- 
art, 23  Pa.  St.  R.  244 ;  Printup  v.  Mitchell, 
17  Geo.  R.  558.  Whether  an  erasure  is  ma- 
terial or  immaterial,  is  a  question  for  the 
opinion  of  the  court;  Steele's  Lessee  v. 
Spencer  et  al.,  1  Pet.  R.  560  ;  Hale  v.  Russ, 
1  Greenl.  R.  334;  Johnson  v.  The  Bank  of 
the  United  States,  2  B.  Mon.  R.  310  ;  Brown 
V.  Pinkham,  18  Pick.  R.  172;  Martendale  v. 
Follett,  1  N.  H.  R.  95  ;  Bowers  v.  Jewell,  2 
Id.  543  ;  Morril  v.  Otis,  12  Id.  406  ;  Humph- 
reys V.  Guillou  et  al.,  13  Id.  385  ;  Marshall 
V.  Gougler,  10  Serg.  k  Raw.  R.  164  ;  Hill  v. 
Cooley,  46  Pa.  St.  R.  259. 

Although  a  writing  may  have  been  altered 
after  its  execution,  still,  if  subsequently  to 
the  alteration,  it  be  ratified  by  all  the  par- 
ties, it  will  be  binding  ;  Speake  et  al.  v.  The 
United  States,  9  Cranch's  R.  28  ;  Hale  v. 
Ru.«s,  1  Greenlf.  R.  334  ;  Byers  v.  McClanahan, 
6  Gill,  k  Johns.  R.  250  ;  Johnson  v.  The  Bank 
of  the  United  States,  2  B.  Mon.  R.  310  ;  Con- 
well  V.  Danridge's  Admr.,  8  Dana's  R.  272  ; 
Bank  of  Limestone  v.  Penick,  5  Mon.  R.  29  ; 
Smith  V.  Crooker  et  aL,  5  Mass.  R.  538; 
Humphreys  v.  Guillou  et  al.,  13  N.  H.  R. 
385  ;  Hills  V.  Barnes  et  al.,  11  Id.  395  ;  Cam- 
den Bank  v.  Hall  et  al.,  2  Green's  R.  583  ; 
Woolley  et  al.  v.  Constant,  4  Johns.  R.  54 ; 
Penny  v.  Corwithe,  18  Id.  499 ;  Barrington 
et  al.  V.  The  Bank  of  Washington,  14  Serg. 
&  Raw.  R.  406  ;  Shippen's  Heirs  v.  Clapp,  29 
Pa.  St.  R.  265  ;  Collins  v.  Makepeace,  13 
Ind.  R.  448  ;  Ratcliffe  v.  Planters'  Bk.,  2 
Sneed's  R.  425  ;  Fitzpatrick  v.  Fitzpatrick,  6 
R.  I.  R.  64. 

A  distinction  has  been  drawn  between 
deeds,  or  instruments  under  seal,  and  grants 
of  estates  lying  merely  in  grant,  or  bills  or 
notes,  as  respects  loss  of  evidence  of  title, 
arising  from  erasures  ;  thus,  it  has  been  held, 
that  if  a  deed  of  conveyance  be  altered,  the 
title  to  the  land  conveyed  thereby,  is  not  af- 
fected, but  merely  the  evidence  of  that  title, 
and  the  covenants  of  the  deed  ;  Barrett  v. 
Thorndike,  1  Greenlf.  R.  73  ;  Wallace  v. 
Harmstead,  15  Pa.   St.  R.   462 :  Withers  v. 


OF    CONTRACTS. 


157 


there  been  no  other  reason  for  it  than  the  dntj  of  a  person  ha^dng 


Atkinson,  1  Wat.  R.  236  ;  Williams  v.  Van 
Tuyl,  2  0.  R.  (N.  S.)  336  ;  Babb  v.  Clemson, 
10  Serg.  &  Raw.  R.  419  ;  and,  "that  where 
the  subject-matter  of  the  deed  lies  in  grant, 
so  that  the  estate  created,  cannot  exist  with- 
out the  deed,  because  it  is  of  the  essence  of 
the  estate,  any  alteration  in  the  deed,  mate- 
rial or  immaterial,  by  the  party  claiming  the 
estate,  avoids  the  deeds  as  to  him,  to  all  in- 
tents and  purposes,  so  that  not  only  all  rem- 
edy by  action,  but  the  estate  itself,  is  gone  ;" 
Lewis  etal.  v.  Payne,  8  Cow.  R.  7.  As  regards 
deeds  of  conveyance  of  land,  there  can  be  no 
question,  that  a  fraudulent  alteration,  or  even 
a  voluntary  destruction,  by  a  party,  will  not 
destroy  his  title,  but  merely  vitiates  his  evi- 
dence, and  destroys  the  covenants  of  the 
deed ;  Barrett  v.  Thorndike,  1  Greenlf.  R. 
73  ;  Jackson  v.  Chase,  2  Johns.  R.  87  ;  Lewis 
et  al.  V.  Payne,  8  Cow.  R.  7  ;  Jackson  v. 
Gould,  7  Wend.  R.  364  ;  Withers  v.  Atkin- 
son, 1  Watts'  R.  236  ;  Wallace  v.  Harmstead, 
15  Pa.  St.  R.  462  ;  Graysons  v.  Richards,  10 
Leigh's  R.  57;  Babb  v.  Clemson,  10  Serg.  & 
Raw.  R.  419. 

If  a  note  be  altered  by  the  promisee,  its 
validity  is  destroyed,  and  as  the  evidence  of 
the  title  to  the  note  is  gone,  so  is  the  remedy, 
and  no  other  evidence  can  be  resorted  to  for 
the  purpose  of  maintaining  an  action  ;  Mar- 
tendale  v.  Follett,  1  N.  H.  R.  95  ;  Blade  v. 
Noland,  12  Wend.  R.  173.  In  Wallace  v. 
Harmstead,  15  Pa.  St.  R.  462,  Gibson,  C.  J., 
says,  "The  doctrine  of  deeds,  stands  on  the 
principles  of  the  common  law  ;  the  doctrine 
of  commercial  instruments,  stands  on  the 
principles  of  the  law  merchant ;  .  .  .  fraudu- 
lent alteration  of  either,  avoids  it  between 
the  original  parties  ;  but  the  necessities  of 
trade  require,  that  a  bo//a  fide  holder  of  a 
bill  or  note,  be  not  involved  in  the  conse- 
quences of  their  diealings.  On  the  other  hand, 
the  assignee  of  a  bond,  whether  legal  or  equi- 
table, is  subject  to  defalcation  and  the  equi- 
ties of  the  obligor." 

There  is  yet  another  topic  to  be  noticed  in 
connection  with  this  subject,  and  that  is,  in 
relation  to  bonds  or  notes  in  blank,  or  drawn 
with  blanks.  It  seems  to  be  admitted,  as 
respects  notes,  that  where  one  writes  his 
name  upon  a  piece  of  paper,  or  draws  a  note 


with  blanks,  and  gives  the  paper  or  writing 
to  another,  who  draws  a  note,  or  fills  up  the 
blanks,  it  is  valid,  upon  the  principle  of  im- 
plied consent;  Inglish  etal.  v.  Brenneman,  4 
Eng.  R.  122  ;  S.  C.  5  Id.  377  ;  Bk.  of  Lime- 
stone v.  Penick,  5  Mon.  R.  59;  Bk.  of  St. 
Clairsville  v.  Smith,  5  0.  R.  222  ;  in  this  last 
case,  a  note  was  drawn  with  a  blank  sum, 
though  there  was  a  verbal  stipulation,  that  it 
should  not  be  filled  to  a  greater  amount  than 
$200  ;  it  was,  however,  filled  for  $700,  yet  the 
note  was  held  good.  And  see  also,  Worrall 
V.  Gheen,  39  Pa.  St.  R.  388.  But  it  has  been 
held,  that  the  blanks  only  are  to  be  filled, 
which  will  be  sufiicient  to  make  it  a  valuable 
instrument,  and  hence  where  a  blank  note 
was  filled  with  a  waiver  of  the  appraisement 
laws,  the  whole  instrument  was  vitiated; 
Holland  v.  Hatch,  11  Ind.  R.  497  ;  and  see 
Ives  V.  Farmers'  Bk.,  2  Allen's  R.  (Mass.) 
236. 

On  the  subject  of  bonds,  the  cases  are 
wholly  irreconcilable  ;  the  following  holding, 
that  where  one  aflaxes  his  signature  and  seal 
to  a  piece  of  paper,  and  authorizes  it  to  be 
filled,  it  will  be  binding  ;  Boardman  v.  Goret, 
1  Stew.  R.  517  ;  Wiley  et  al.  v.  Moore  etal., 
17  Serg.  &  Raw.  R.  438 ;  Bk.  of  So.  Car.  v. 
Hammond,  1  Rich.  L.  R.  281  ;  Gourdin  v. 
Commander  et  al.,  6  Id.  497  ;  the  contrary 
being  maintained  in  Byers  v.  McClanahan,  6 
Gill.  &  Johns.  R.  250  ;  Ayers  v.  Harnes,  1 
0.  R.  372  ;  Horry  Dist.  v.  Harrison,  1  N.  & 
McC.  R.  554  ;  Boyd  v.  Boyd,  2  Id.  125  ;  Dun- 
can V.  Hodges,  4  MeC.  R.  239  ;  Perminter  v. 
McDaniel,  1  Hill's  R.  267  ;  Stoney  v.  Mc- 
Neill, Harp.  156  ;  Gilbert  v.  Anthony,  1 
Yerg.  R.  69.  The  same  diversity  of  opinion 
exists  in  relation  to  bonds  executed  with 
blanks  ;  some  of  the  cases  holding  them  to  be 
valid,  as  Smith  v.  Crooker,  5  Mass.  R.  538  ; 
Ex  parte  Decker,  6  Cow.  R.  69  ;  Ex  parte 
Kerwin,  8  Id.  118  ;  Commercial  Bk.  of  Buf- 
falo V.  Cortwright,  22  Wend.  R.  348  ;  Van- 
hook  V.  Barnett  et  al.,  4  Dev.  L,  R.  272  ; 
Whiting  V.  Daniel  et  al.,  1  Hen.  &  Munf.  R. 
390  ;  Duncan  v.  Hodges,  4  McC.  R.  239  ;  Nor- 
fleet  V.  Edwards,  7  Jones's  L.  R.  455  ;  and 
others  deciding  that  they  have  no  validity; 
Graham  v.  Holt,  3  Ired.  L.  R.  300  ;  Daven- 
port V.  Sleight,   2  Dev.  &  Bat.   L.  R.  381  ; 


158  OF   CHOSES   IN   ACTION. 

the  custoclj'  of  an  instrument,  made  for  liis  benefit,  to  preserve  it 
in  its  original  state. 

*IIaving  now  spoken  of  the  projnise,  whether  express  or 
•-  -*  implied,  which  is  necessary  to  a  contract,  and  also  of  the 
consideration,  whether  express  or  implied,  by  which  such  promise 
is  sustained,  let  us  consider  some  important  objects  for  which  a 
contract  may  be  made,  and  which  seems  to  require  a  special  men- 
tion. The  object  for  which  a  contract  is  made  may  be  either  law- 
ful or  unlawful;  and  if  it  be  unlawful  the  contract  will  be  void, 
and  the  illegality  may  be  pleaded  as  a  (Jefence  to  an  action  brought 
upon  such  a  contract.(A:)  A  distinction  was  formerly  taken  be- 
tsveen  contracts  whose  object  was  merely  prohibited  by  the  law 
under  some  given  penalty,  and  those  whose  object  was  morally 
wrong.  The  former  were  termed  mala  profcibita,  the  latter  inala 
in  se;{l)  and  it  was  considered  that,  as  the  former  involved  no  moral 
turpitude,  a  man  might  embrace  either  of  the  alternatives  offered 
by  the  law,  and  either  abstain  from  the  oifence  and  remain  harm- 
less, or  commit  it  and  suffer  the  penalty.  This  distinction,  how- 
ever, has  long  been  exploded ;(?>i)  for  it  is  considered  to  be  equally 
unfit  that  a  man  should  be  allowed  to  take  advantage  of  what  the 
law  says  he  ought  not  to  do,  whether  the  thing  be  prohibited  be- 
cause it  is  against  good  morals,  or  whether  it  be  prohibited  because 
it  is  against  the  interest  of  the  state.^     Whether,  therefore,  the 

(k)  Collins  V.  Blantern,  2  Wils.  341,  347;  S.  C.  1  Smith's  Leading  Cases,  154;  Paxton 
V.  Popham,  9  East,  408  ;  Pole  v.  Harrobin,  9  East,  416,  n.  ;  De  Begnis  v.  Armistead,  10 
Bing.  107,  E.  C.  L.  R.  vol.  25  ;  S.  C.  3  Moo.  &  Scott,  516. 

(/)   See  1  Black.  Com.  64,  57. 

(m)  Aubert  v.  Maze,  2  Bos.  &  Pul.  374,  375  ;  Cannan  v.  Bryce,  3  B.  &  Aid.  183,  E.  C.  L. 
R.  vol.  5;  Bensley  v.  Bignold,  5  Barn.  &  Aid.  335,  341,  E.  C.  L.  R.  vol.  7;  Cope  v.  Bow- 
lands,  2  Mee.  &  Wels.  149,  157;  Fergusson  «.  Norman,  5  Bing.  N.  C.  76,  84,  E.  C  L.  R. 
vol.  35. 


McKee  v.  Hicks,  2  Dev.  L.  R.  379  ;  Harri-  most  universal  use  for  some  purposes,  for  ex- 
sons  V.  Tivernans,  4  Rand.  R.  187  ;  or,  that  at  ample,  the  transfer  of  stocks  and  loans,  will 
least,  there  must  be  some  proof  of  authority  probably  induce  the  courts  to  recognize  their 
to  fill  the  blanks  ;  Clendaniel  v.  Hastings,  5  validity.  See  Vliet  v.  Camp,  13  Wis.  R.  198. 
Harring.  R.  508.  ^  There  is  probably  no  principle  of  law 
In  regard  to  letters  of  attorney,  for  com-  better  settled,  than  that  every  contract  must 
mercial,  banking,  and  ordinary  business  pur-  have  a  legal  consideration  ;  Pounds  v.  Rich- 
poses,  the  necessities  of  trade  have  led  to  the  ards  et  al.,  21  Ala.  R.  424;  Marey  v.  Craw- 
adoption  of  such  instruments  with  blanks,  to  ford,  16  Conn.  R.  552  ;  Coolidge  v.  Blake,  15 
a  very  large  extent.  The  great  convenience  Mass.  R.  430  ;  Wheeler  v.  Russell,  17  Id. 
of  their  employment,  together  with  their  al-  258  ;    Wilson  et  al.  v.  Education    Soc,   10 


OF   CONTRACTS. 


159 


object  of  a  contract  be  unlawful  because  morally  wrong,  or  un- 
lawful by  the  policy  of  the  common  law,  or  unlawful  because  a 


Barb.  S.  C.  R.  308  ;  Weeks  v.  Lippencott,  42 
Pa.  St.  R.  474  j  Stanley  v.  Nelson,  28  Ala. 
R.  514;  Fireman's  Ch.  Association  v.  Berg- 
haus,  13  La.  An.  R.  209  ;  and  it  is  immate- 
rial whether  the  illegality  of  the  consideration 
consists  in  its  being  prohibited  by  statute,  or 
in  its  being  contrary  to  good  morals,  or 
against  public  policy  ;  whether  it  be  vialum, 
luohibitum  or  malum  in  se  ;  for  under  either 
aspect,  the  contract  is  equally  void.  The 
leading  case  on  this  subject  is,  Armstrong  v. 
Toller,  11  Wheat.  R.  268;  S.  C.  Toilers. 
Armstrong,  4  Wash.  C.  C.  R.  297,  in  which 
Marshall,  C.  J.,  says,  "  Questions  upon  il- 
legal contracts  have  arisen  very  often,  both 
in  England  and  in  this  country  ;  and  no 
principle  is  better  settled,  than  that  no  action 
can  be  maintained  on  a  contract,  the  consid- 
eration of  which  is  either  immoral  in  itself,  or 
prohibited  by  law." 

In  like  manner,  if  the  original  considera- 
tion of  a  contract  is  in  any  respect  unlawful, 
any  subsequent  agreement  founded  upon  it, 
and  by  which  it  is  to  be  carried  into  effect,  is 
likewise  unlawful  ;  but  if  the  subsequent 
agreement  can  be  entirely  separated  from  the 
former  illegality,  it  is  valid  ;  Walker  v.  Bk. 
of  Washington,  3  How.  R.  62  ;  Warren  v. 
Crabtree,  1  Greenleaf  R.  167  ;  Smith  v.  Bar- 
stow,  2  Doug.  R.  16.S  ;  Ejrly  v.  Mahon,  19 
Johns.  R.  147  ;  Bell  v.  Quinn,  2  Sandf.  S.  C. 
R.  146  ;  Columbia  Bridge  Co.  v.  Kline, 
Bright  R.  320  ;  Terry  v.  Bissell,  26  Conn.  R. 
23  ;  Bates  v.  Watson,  1  Sneed's  R.  376  ; 
Shelton  v.  Marshall,  16  Texas  R.  344  ;  Bou- 
telle  V.  Melendy,  19  N.  H.  R.  196  ;  Barton 
V.  Port  Jackson  &  Union  Falls  Plank  Road 
Co.,  17  Barb.  R.  397  ;  and  so  too,  if  the  con- 
sideration is  part  lawful,  and  part  unlawful, 
the  good  shall  stand,  and  the  bad  only  be 
avoided,  unle.s8  it  be  of  such  a  nature  that  the 
good  and  bad  cannot  be  separated,  in  which 
case  the  whole  contract  will  be  void  ;  Nich- 
olson V.  Fearson,  7  Pet.  R.  103  ;  Moncurev. 
Dermott,  13  Id.  345  ;  Whitsell  v.  Woinack,  8 
Ala.  R.  466  ;  Pond  v.  Smith,  4  Conn.  R.  297  ; 
Terry  et  al.  v.  Olcott,  Id.  442  ;  Gardner  v. 
Mazey,  9  B.  Mon.  R.  90  ;  Irvine  v.  Stone  et 
al.  6  Cush.  R.  508  ;  Ilinds  v.   Chamberlain, 


6  N.  H.  R.  225  ;  Carleton  v.  Whitcher,  5  Id. 
196  ;  Roby  v.  West,  4  Id.  285  ;  Crawford  v. 
Merrell,  8  Johns.  R.  253  ;  Township  of  Not- 
tingham V.  Giles,  1  Pa.  R.  120  ;  Vroom  v. 
Exrs.  of  Smith,  2  Green's  R.  479  ;  Hook  v. 
Gray,  6  Barb.  Super.  C.  R.  398  ;  Brown  v. 
Tappan,  9  Wend.  R.  175  ;  Hamilton  v.  Can- 
field,  2  Hall's  R.  526j  Van  Alstyne  v.  Wim- 
ple, 5  Cow.  R.  162  ;  Frazier  v.  Thompson,  2 
Wat.  &  Serg.  R.  235  ;  Yundt  v.  Roberts,  5 
Serg.  &  Raw.  R.  138  ;  Filson's  Trustees  v. 
Himes,  5  Pa.  St.  R.  452  ;  Thomas  v.  Brady, 
10  Id.  170  ;  Buck  V.  Albee,  26  Vt.  R.  184  ; 
Gelpcke  v.  Dubuque,  1  Wallace's  U.  S.  R. 
221 ;  Carleton  v.  Woods,  8  Foster's  R.  290  ; 
Rose  V.  Truax,  21  Barb.  R,  361 ;  and  although 
a  contract  tainted  with  fraud,  may  be  ratified 
or  confii  med,  without  a  new  contract  founded 
on  a  new  consideration  ;  yet  when  the  contract 
is  in  substance,  or  essential  form,  illegal, 
neither  party  can  ratify  it,  because  the  wrong 
done  is  against  the  State,  and  it  only  can 
forgive  it  ;"  Pearsoll  v.  Chapin,  44  Pa.  St.  R. 
15  ;   Boutelle  v.  Melendy,  19  N.  H.  R.  196. 

A  distinction  is  to  be  noted  on  this  subject 
between  contracts  executory,  and  those  execu- 
ted ;  in  the  former  case  the  contract  will  not 
be  enforced,  by  reason  of  the  unlawful  con- 
sideration or  promise,  and  in  the  latter  case 
the  courts  will  not  grant  relief,  but  will  suf- 
fer the  status  of  the  parties  to  remain,  and 
particularly  so,  where  the  application  is  made 
by  the  party  who  has  been  guilty  of  the  un- 
lawful act  ;  Adams  v.  Barrett,  5  Geo.  R.  608  ; 
Musson  et  al.  v.  Fales  et  al.,  16  Mass.  R. 
334  ;  Ball  v.  Gilbert,  12  Metcf.  R.  397  ;  Skin- 
ner V.  Henderson,  10  Misso.  R.  205  ;  Knee- 
land  V.  Rogers  et  al.,  2  Hall's  R.  679  ;  Greene 
V.  Godfrey,  44  Maine  R.  25.  But  the  guilty 
party,  will  not  be  allowed  to  retain  the  fruits 
of  the  contract,  at  the  expense  of  the  innocent, 
and  will  be  liable,  not  upon  any  valid  portion 
of  the  express  contract,  but  on  the  implied 
contract,  to  account  for  money  or  property 
received  ;  Tracy  v.  Talmadge,  4  Sneed's  R. 
429  ;  Hunt  v.  Turner,  9  Texas  R.  385. 

But  a  contract  which  has  been  made  in  a 
foreign  couTitry,  and  is  in  accordance  with 
the  laws  of  the  place  where  it  was  made,  may 


160 


OF    CHOSES   IN   ACTION. 


penalty  is  attached  to  it  by  any  particular  statute,  in  every  case 
the  contract  is  void;  and  it  is  indifterent,  under  such  circumstances, 


be  carried  into  effect  in  this  country,  although 
contrary  to  our  hiws  ;  unless  it  was  entered 
into  with  the  intention  of  being  perfected 
here,  in  fraud  of  our  statutes  ;  or  unless  its  en- 
forcement would  result  in  injury  to  our  citi- 
zens, or  afford  a  pernicious  example  ;  Green- 
wood V.  Curtis,  6  Mass.  R.  358  ;  Thompson 
V.  Ketchum,  8  Johns.  R.  189  ;  Hicks  v. 
Brown,  12  Id.  142;  Sconelle  v.  Canfield,  14 
Id.  338  ;  Lodge  v.  Phelps,  1  Johns.  Cas.  139  ; 
Ruggles  V.  Keeler,  3  Johns.  R.  263  ;  Emory 
V.  Qreenough,  3  Dal.  R.  370,  n.  ;  Adams  v. 
Gay,  19  Vt.  R.  358  ;  Smith  v.  Godfrey,  8  Fos- 
ter's R.  379  ;  Thatcher  v.  Morris,  1  Kernan's 
R.  437. 

Where  a  statue  contains  a  provision  for  the 
performance  of  a  certain  thing,  other  ways  of 
accomplishing  that  thing  are  not  necessarily 
void  :  if,  indeed,  the  statute  expressly  says 
that  the  act  shall  be  done  in  the  manner 
pointed  out,  and  not  otherwise,  then  all  other 
means  are  unlawful,  but  if  it  only  directs, 
and  does  not  enjoin,  the  matter  may  be  ac- 
complished in  any  other  way,  provided  it  be 
not  contrary  to  the  principles  of  the  common 
law,  or  to  good  morals  or  public  policy  ; 
Whitsell  V.  Womack,  use,  Ac,  8  Alaba.  R. 
466  ;  Lugg  V.  Burgess  et  al.,  2  Stew.  R.  509  ; 
Bates  et  al.  v.  The  Bank  of  the  State  of  Ala- 
bama, 2  Alaba.  R.  487  ;  Postmaster-General 
V.  Early,  12  Wheat.  R.  136  ;  Smith  v.  The 
United  States,  5  Pet.  R.  293  :  Farrar  et  al. 
V.  The  United  States,  Id.  273  ;  Justices  of 
Christian  v.  Smith  et  al.,  2  J.  J.  Marsh.  R. 
474  i  Fant  et  al.  v.  Wilson,  3  Mon.  R.  343  ; 
McCormick  v.  Young,  3  J.  J.  Marsh.  R.  180  ; 
Baker  v.  Haley  et  al.,  5  Greenf.  R.  240  ; 
Kavanagh  v.  Saunders  et  al.,  8  Id.  422  ;  Pur- 
ple V.  Purple  et  al.,  5  Pick.  R.  226  ;  Vroom 
V.  Exrs  of  Smith,  2  Green's  R.  479  ;  Ellis  v. 
Robinson,  2  Pa.  R.  707 ;  Howard  v.  Black- 
ford, Id.  777  ;  Day  v.  Hale,  7  Halst.  R.  204  ; 
Woolwich  V.  Forrest  et  al.,  1  Pa.  R.  115  ; 
Township  of  Middleton  v.  McCormick  et  al., 
2  Id.  200  ;  Doll  V.  Bull  et  al.,  2  Johns.  Gas. 
239  ;  Cloasen  v.  Shaw,  5  AVat.  R.  468  ;  Far- 
mer's Bk.  of  Reading  v.  Boyer,  16  Serg.  & 
Raw.  R.  4  J  Anderson  v.  Foster,  2  Bail.  R. 
601 ;  Hooe  V.  Tebbs  et  al.,  1  Munf.  R.  501. 


And  even  where  an  act  is  expressly  prohib- 
ited by  the  laws,  it  does  not  follow  that  every 
contract  which  may  be  tainted  with  the  ille- 
gal matter  is  absolutely  void,  but  it  depends 
in  each  case  upon  a  sound  construction  of  the 
statute  prohibiting  it.  Take,  for  instance,  the 
subject  of  usury,  which  is  generally,  through- 
out the  Union,  forbidden  by  statutory  enact- 
ment, yet  usurious  contracts  are  not  usually 
held  absolutely  void,  but  the  decisions  on  the 
subject  are  as  various  as  the  statutes,  and  in 
every  case  it  depends  upon  the  construction 
of  the  statute,  whether  the  contract  shall  be 
void,  or  only  void  pro  tanto.  In  a  word,  if 
the  law  does  not  avoid  the  instrument  or  con- 
tract, on  account  of  such  illegality,  it  will  be 
valid  for  the  legal,  and  void  only  for  the  ille- 
gal part  of  it  ;  De  Wolf  v.  Johnson  et  al.,  10 
Wheat.  R.  367  ;  Flecknor  v.  The  U.  S.  Bank, 
8  Id.  338  ;  Higginson  et  al.  v.  Gray  et  al.,  6 
Metcf.  R.  212;  Bank  of  Washington  v.  Ar- 
thur et  al.,  3  Graft.  R.  173;  Tracy  v.  Tal- 
madge,  4  Sneed's  R.  429.  Thus  in  Massa- 
chusetts and  New  Hampshire,  three  times  the 
usurious  interest  is  to  be  deducted  from  the 
claim,  which  will  then  be  good  for  the  bal- 
ance ;  Upham  v.  Brimhall,  1 1  Metcf.  R.  526  ; 
Brigham  v.  Moreau,  7  Pick.  R.  40  ;  Parker 
V.  Biglow,  14  Id,  436  ;  Sumner  v.  Williams, 
1  Metcf.  R.  398  ;  IJrng  v.  Howard,  1  Cush.  R. 
137  ;  Simons  v.  Steele,  36  N.  H.  R.  73.  In 
Pennsylvania,  Kentucky,  Maine,  Vermont, 
Tennessee,  Ohio,  Missouri,  Illinois,  Alabama, 
Arkansas,  and  Michigan,  the  interest  over 
and  above  that  which  is  allowed  by  law,  only, 
is  forfeited,  and  an  action  may  be  brought 
for  principal  and  lawful  interest ;  Wycoff  v. 
Longhead,  2  Dal.  R.  92;  Turner  v.  Calvert,  12 
Serg.  &  Raw.  R.  46  ;  Berry  v.  Walker,  9  B. 
Mon.  R.  467;  Larrabee  v.  Lambert,  32  Maine 
R.  97  ;  Elworth  v.  Mitchell,  31  Id.  249  ; 
White  V.  The  Franklin  Bank,  22  Pick.  R. 
181 ;  Hawkins  v.  Welsh,  8  Misso.  R.  490  ; 
The  State  of  Ohio,  for  the  use,  Ac,  v.  Taylor 
et  al.,  10  0.  R.  378  ;  Busby  v.  Finn,  1  0.  R. 
N.  S.  410  ;  Isler  v.  Brunson,  6  Hump.  R. 
277  ;  Boyers  v.  Boddie,  3  Id.  666  ;  Weather- 
hedd  V.  Boyers,  7  Yerg.  R.  545  ;  Turney  v- 
The  State  Bank,  5  Hump.  R.  407,  410  ;  Ste. 


OF   CONTRACTS.  161 

whether  the  contract  be  made  by  deed,  *or  by  parol  merely. 
Thus  if  a  bond  under  seal  be  given  by  a  man  to  a  woman    '-       -^ 


vens  V.  Fisher,  23  Vt.  R.  272  ;  Burton  v.  Johns.  R.  284  ;  Bridge  v.  Hubbard,  15  Mass. 
Blin,  23  Id.  151  ;  Nichols  et  al.  v.  Bliss,  22  R.  96  ;  Moter  v.  Dorsett,  liVIcCord's  R.  350  ; 
Id.  581  ;  Heath  v.  Page,  48  Pa.  St.  R.  130  ;  Clark  v.  Badgely,  3  Halst.  R.  233 ;  but,  if  a 
Nichols  V.  Stewart,  21  111.  R.  106  ;  Nobler,  subsisting  contract  is  good  and  legal,  it  can- 
Walker,  32  Ala.  R.  456  ;  Ruddell  v.  Ambler,  not  be  destroyed  by  a  subsequent  agreement 
18  Ark.  R.  369  ;  Farmers'  Bk.  v.  Burchard,  as  to  usurious  interest ;  Stebbins  v.  Smith,  4 
33  Vt.  R.  346  ;  Smith  v.  Stoddard,  10  Mich.  Pick.  R.  97  ;  Swartwout  v.  Payne,  19  Johns. 
R.  148;  but  in  Pennsylvania,  formerly,  if  R.  294;  Johnson  v.  Johnson,  II  Mass.  R. 
any  portion  of  the  usurious  interest  had  been  359  ;  Hughes  v.  Wheeler,  8  Cow.  R.  77  ;  Rice 
received,  the  whole  thing  loaned  was  forfeited  v.  Welling,  5  Wend.  R.  595  ;  Hammond  v. 
as  a  penalty,  and  could  be  recovered  in  a  qui  Hopping,  13  Id.  505  ;  Mitchell  v.  Cotten,  2 
tam  action  ;  Philip  v.  Kirkpatrick,  Addis.  R.  Fla.  R.  149  ;  Troutman  v.  Barnett,  9  Geo. 
124  ;  Exrs.  of  Pawling  v.  Admrs.  of  Pawling,  R.  30  ;  Williams  v.  Williams,  1  Har.  R  255  ; 
4  Yeat.  R.  220  ;  Large  v.  Passmore  et  al.,  5  Edgell  v.  Stanford,  6  Vt.  R.  551  ;  and  it  is 
Serg.  &  Raw.  R.  51  ;  Evans  «;.  Negley,  13  Id.  not  usury,  to  purchase  a  note,  bond,  or  other 
218  ;  Agnew  v.  McElhare,  18  Pa.  St.  R.  484  ;  security  for  money,  at  any  rate  of  discount, 
but  these  decisions  were  made  under  the  act  as  there  is  not  a  contract  of  loan  ;  for  usury 
of  the  2d  of  March,  1723,  which  has  since  is  the  taking  of  interest  at  an  illegal  rate 
been  repealed  by  the  act  of  the  28th  of  May,  upon  a  loan  ;  but  it  must  be  a  hoimfide  trans- 
1858,  Purd.  Dig.  (1861),  p.  561;  Fitzsimons  action,  and  the  note  or  bill  must  not  have 
V.  Baum,  44  Pa.  St.  R.  32.  been  used,  or  made,  as  a  mere  device  to  avoid 

In    Indiana,     Louisiana,  Mississippi,    and  the  statutes  of  usury  ;  Saltmarsh  v.  Bank,  17 

South  Carolina,  the  whole  interest  is  forfeited,  Ala.  R.  761 ;  S.  C.  14  Id.  668  ;  Brown  v.  Har- 

and  the  principal  can  only  be  recovered  ;  Bil-  rison,  17  Id.  774  ;  Gregory  v.  Bewley,  2  En"', 

lingsley  v.  The    State    Bank    of  Indiana,   3  R.  22  ;  S.  C.  5  Ark.  R.   318;  Caton  v.  Shaw, 

Port.   R.   377;   Lalande  v.   Breaux  et  al.,  5  2  Har.  &  Gill's  R.  13;  Belden  v.  Lamb,   17 

Ann.  R.  505  ;  Richards  t;.  Freesler,  2  Id.  265  ;  Conn.  R.  441  ;  Freeman  v.  Brittin,  2  Har.  R. 

Haynes  v.  Cobb,  Id.  364  ;  McLaurin  v.  Park-  191  ;  Braman  v.  Hess,  13  Johns.  R.  52 ;  Mann 

er  et  al.,  24  Miss.   R.   511 ;  Quarles  v.  Bran-  v.  Company,  15  Id.  44  ;  Powell  v.  Waters,  17 

non,  5  Strobh.  L.  R.  151.     On  the  subject  of  Id.  176  ;  Cobb  v.  Titus,  13  Barb.  S.  C.  R.  47  ; 

usury,  see  generally,  History  of  Usury,  by  J.  Seymour  v.  Marvin,   11   Id.  80  ;  Simpson  v. 

B.  C.  Murray Pullenwidder,  12  Ired.  L.  R.  334;  Musgrove 

The'principle  seems  to  be,  in  accordance  v.  Gibbs,  1  Dal.  R.  216;    Parker  v.  Cousins, 

with  what  is  above  stated,  that  if  the  con-  2  Gratt.  R.  372  ;  so,  too,  to  determine  whether 

tract  be  part  good  and  part  bad,  the  good  or  not  a  loan  is  usurious,  reference  must  be 

shall  prevail  and  the  bad  be  avoided,  if  they  had  to  the  law  of  the  place  where  it  was 

can  be  separated  ;  and  the  statute  points  out  made  ;  Jacks  v.  Nichols,  5  Barb.  S.  C.  R.  38  ; 

what  is  good  and  what  bad,  or  determines,  Sherrill  u.  Hopkins,  1  Cow.  R.  103;  Smith  t;. 

that  under   certain   circumstances,    the  con-  Mead,  3  Conn.  R.  253  ;  De  Wolf  v.  Johnson 

tract  is  to  be  considered   entire,    and    that  10  Wheat.  R.  367. 

therefore  the  good  and  bad  cannot  be  sepa-        For  a  further  and  full  consideration  of  the         ^_L 

rated,  but  the  whole   contract   is   void.      If  subject  of  contracts  void  because  unlawful, 

the   basis  of  a   subsisting   contract   is  usu-  see  the  following  cases  : 

rious,    no    subsequent    agreement    founded        As  to  contracts  void  on  account  of  infring- 

upon,  and  inseparable  from,  the  former  con-  ing  some  statutory  provision  or  enactment ; 

tract,  will  be  free  from  the  taint  of  usury  ;  Hannay  v.  Eve,  3  Cranch's  R.  242  ;  Patton  v. 

Jones  V.  Jackson,  14  Ala.  R.   186  ;   Bostford  Nicholson,   3   Wheat.   R.  207  ;  The  Julia,  8 

«.    Sandford,    2   Conn.    R.    276  ;    Gibson   v.  Cranch's  R.  181  ;  The  Aurora,  Id.  263  ;  The 

Stearns,  3  N.  H.  R.  185  ;  Tuthill  v.  Davis,  20  Hiram,  Id.  444  ;  S.  C.  1  Wheat.  R.  440  ;  The 

11 


162  OF   CHOSES   IN    ACTION. 

in  order  to  induce  her  to  cohabit  with  him,  it  is  void  for  the  im- 


Ariadne,  2  Wheat.  R.  143  ;  Craig  v.  The 
State,  4  Pet.  R.  411;  Fales  t?.  Mayberry,  2 
Gallis.  R.  of.a  ;  Citmbioso  v.  Maffet,  2  Wash. 
C.  C.  R.  103  ;  Kennett  v.  Chambers,  14  How. 
R.  39  ;  Harris  t,'.  Runnels,  12  Id.  80  ;  Munsell 
V.  Temple,  3  Uilm.  R.  93  ;  Wheeler  v.  Rus- 
sell, 17  Mass.  R.  257;  Bank  v.  Merrick,  14 
Id.  322  ;  Hunt  v.  Knickerbocker,  5  Johns.  R. 
327  i  Mitchell  v.  Smith,  1  Bin.  R.  110  ;  Fow- 
ler V.  Throckmorton,  6  Blackf.  R.  326  ;  Steele 
V.  Curie,  4  Dana's  R.  384  ;  Dickerson  v.  Gor- 
dy,  5  Rob.  R.  420  ;  Rand  v.  Tobie,  32  Maine 
R.  420  ;  Merrick  v.  Bank,  8  Gill's  R.  73 ; 
Richardson  v.  Company,  6  Mass.  R  111  ; 
Wickham  v.  Conklin,  8  Johns.  R.  220  ;  Bank 
V.  Niles,  1  Doug.  R.  411  ;  Maybin  v.  Conlon, 
4  Dal.  R.  298  ;  Duncanson  v.  McClure,  Id. 
308  ;  Nichols  v.  Ruggles,  3  Day's  R.  145 ; 
Pratt  V.  Adams,  7  Page's  R.  615  ;  Odineal  v. 
Barry,  24  Miss.  R.  9  ;  Merrell  v.  Legrand,  1 
How.  (Mo.)  R.  150  ;  Callagan  v.  Hallett,  1 
Caines's  R.  104  ;  Ludlow  v.  Van  Rensselaer, 
1  Johns.  R.  94  ;  Goodale  v.  Holridge,  2  Id. 
193  ;  Walt  V.  Harper,  Id.  386  ;  Love  v.  Pal- 
mer, 7  Id.  159  ;  Richmond  v.  Roberts,  Id. 
319;  Read  v.  Pruyn,  Id.  426;  Strong  v. 
Tompkins,  8  Id.  98  ;  Yeomans  v.  Chatterton, 
9  Id.  295  ;  Bruce  v.  Lee,  4  Id.  410  ;  Graves 
V.  Worrall,  14  Id.  146  ;  Griswold  v.  Wadding- 
ton,  15  Id.  57,  S.  C.  16  Id.  438  ;  Seamen  v. 
Waddington,  16  Id.  510  ;  Beddis  v.  James,  6 
Bin.  R.  321  ;  Eberman  v.  Reitzel,  1  Wat.  & 
Serg.  R.  181  ;  Fox  v.  Mensch,  3  Id.  446  : 
Kepner  v.  Keefer,  6  Wat.  R.  231 ;  Yerger  v. 
Rains,  4  Humph.  R.  259,  267  ;  Ohio  Life  and 
Insurance  Trust  Company  v.  The  Merchants' 
Insurance  and  Trust  Co.,  11  Id.  1;  Heirs  of 
Hunt  V.  Heirs  of  Robinson,  1  Tex.  R.  758  ; 
Elkins  i).  Parkhurst,  17  Vt.  R.  106  ;  Spalding 
V.  Preston,  21  Id.  9  ;  Terrett  et  al.  v.  Bartlett, 
Id.  184  ;  Case  v.  Riker,  10  Id.  482  ;  Meyers 
V.  Byerly,  45  Pa.  St.  R.  368. 

As  to  contracts  void  on  account  of  being 
contrary  to  good  morals,  or  because  against 
public  policy,  or  principles  of  the  common 
law,  see  as  well  some  of  the  above  cases,  as 
the  following  :  Greenwood  v,  Exrs.  of  Col- 
cock,  2  Bay's  R.  67;  'Denton  v.  Erwin  et  aL, 
6  (La.)  Ann.  R.  317  ;  Denton  v.  Wilcox,  2 Id. 
66  ;  Slidellj;.  Pritchard  et  al..  5  Rob.  R.  101 ; 
De  Sobry  v.  De  Laistre,  2  Har.  &  Johns.  R. 


228  ;  Commonwealth  v.  Harrington,  3  Pick. 
R.  26  ;  Columbia  Bank  v.  Haldeman,  7  Wat. 
&  Serg.  R.  235  ;  Pulse  v.  State,  5  Humph.  R. 
108  ;  Hale  v.  Henderson,  4  Id.  199  ;  Allen  v. 
Dodd,  Id.  132;  Logan  v.  Austin,  1  Stew.  R. 
478  ;  Grant  et  al.  v.  McLester,  8  Geo.  R. 
553  ;  Harralson  v.  Dicking,  2  Car.  L.  Repos. 
66  ;  The  First  Congregational  Church  of  the 
City  of  New  Orleans  v.  Henderson,  4  Rob.  R. 
209  ;  Shaw  v.  Reed,  30  Maine  R.  105  ;  Denny 
V.  Lincoln,  Admr.,  5  Mass.  R.  387;  Churchill 
V.  Perkins  et  al..  Id.  541 ;  Parsons  v.  Wins- 
low,  6  Id.  169  ;  Boynton  v.  Hubbard,  7  Id. 
112;  Swett  et  al.  v.  Poor  et  al.,  11  Id.  549  ; 
Ayer  v.  Hutchinson,  4  Mass.  R.  370  ;  Belding 
V.  Pitkin,  2  Caines's  R.  149  ;  Thurston  v, 
Percival,  1  Pick.  R.  415  ;  Shelton  v.  Homer 
et  al.,  5  Metcf.  R.  462  ;  Worcester  v.  Eaton, 
11  Mass.  R.  368  ;  Doughty  v.  Owen,  24  Miss. 
R.  407 ;  Plummer  v.  Smith,-5  N.  H.  R.  553  ; 
Sayles  v-.  Sayles,  1  Fost.  R.  312  ;  Sterling  v. 
Simmickson,  2  South  R.  756;  Fanshor  v.- 
Stout,  1  Id.  312 ;  Sharp  et  al.  v.  Teese,  4 
Halst.  R.  352  ;  Gulick  et  al.  v.  Ward  et  al.,  5 
Id.  87  ;  Jones  v.  Caswell,  3  Johns.  Cas.  29  ; 
Doolin  V.  Ward,  6  Johns.  R.  194  ;  Wilbur  v. 
How,  8  Id.  444  ;  Thompson  v.  Davies,  13  Id. 
112;  Smith  et  al.  v.  Applegate,  3  Zabr.  R. 
352  ;  Whitaker  v.  Cone,  1  Johns.  Cas.  58  ; 
Sherman  v.  Boyce,  15  Johns.  R.  443  ;  Tux- 
bury  V.  Miller,  19  Id.  311  ;  Hatch  v.  Mann, 
15  Wend.  R.  44  ;  Preston  v.  Bacon,  4  Conn. 
R.  471  ;  Shattuck  v.  Woods,  1  Pick.  R.  175 ; 
Bassier  v.  Pray,  7  Serg.  &  Raw.  R.  447  ;  Car- 
roll V.  Tyler,  2  Har.  &  G.  R.  .54  ;  Smith  v. 
Smith,  1  Bail  R.  70  ;  Harris  v.  Ross's  Exrs. 
10  Barb.  Sup.  C.  R.  489  ;  Hartzfield  v.  Gar- 
den, 7  Wat.  R.  152  ;  Chippenger  u.  Hopbaugh, 
5  Wat.  &  Serg.  R.  315  ;  Pingry  v.  Washburn, 
1  Aik.  R.  264 ;  Cameron  v.  McFarland,  2 
Car.  L.  Repos.  415  ;  Stout  v.  Wren,  1  Hawk's 
R.  420  ;  Oberman  v.  Clemmons,  2  Dev.  &  Bat. 
L.  R.  185  ;  Barbee  v.  Armstead  etal.,  10  Ired. 
L.  R.  530  ;  Roll  V.  Raguet,  4  0.  R.  418  ;  Cou- 
lon  V.  Morton  et  al.,  Exrs.,  4  Y-eat.  R.  24  ; 
Schenck  v.  Mingle,  13  Serg.  &  Raw.  R.  29  ; 
Lidenbender  v.  Charles's  Admr.  4  Id.  15]  ; 
Crook  V.  Williams,  20  Pa.  St.  R.  344;  Oorley 
V.  Williams,  1  Bail.  R.  588 ;  Vincent  v.  ■ 
Groom,  1  Yerg.  R.  430  ;  Bowers  v.  Bowers, 
28  Pa.  St.  R.  74. 


OF   CONTRACTS.  163 

morality  of  its  object.(w)  But  a  bond  given  to  a  woman  in  respect 
of  the  injury  she  has  sustained  by  past  cohabitation  is  valid.(o) 
For  in  this  case  the  object  is  not  immoral:  and  the  consideration 
implied  by  the  bond  being  a  deed  under  seal  supplies  the  want 
which  would  otherwise  exist  of  a  proper  consideration.  (j3)  If  a 
contract  have  more  than  one  object,  and  some  of  the  objects  are 
lawful  whilst  the  others  are  unlawful,  the  unlawful  objects  will 
not  vitiate  the  others,(ry)  provided  the  good  part  be  separable  from, 
and  not  dependent  upon,  that  which  is  bad;(r)  unless  of  course 
the  whole  contract  should  be  rendered  void  by  any  enactment  to 
the  effect  that  all  instruments  containing  any  matter  contrary 
thereto  shall  be  void,  in  which  case  everything  connected  with  the 
instrument  will  be  vitiated. (6)*  And  if  the  good  part  of  a  contract 
be  inseparable  from  the  bad.  as  if  a  contract  be  made  partly  in 
consideration  of  the  paymejit  of  money  (which  would  be  good), 
and  partly  for  a  consideration  whose  object  ]s  illegal,  the  illeo-al 
part  of  the  consideration  will  vitiate  the  good,  and  render  the 
whole  contract  void.(i!) 

*The  instance  above  given  of  a  bond  for  future  cohabi- 
tation is  an  example  of  a  contract  void  on  account  of  its    ^  ^"J 
object  being  malum  in  se,  or  morally  wrong.     In  the  same  man- 
ner, no  action  can  be  maintained  on  any  contract  for  the  sale 

(k)  Walker  t;.  Perkins,  1  Wm.  Black.  517;  S.  C.  3  Burr.  1568;  Gray  «.  Mathias  5  Ves 
286, 

(0)  Turner  v.  Vaughan,  2  Wils.  339  ;  Hill  v.  Spencer,  2  Amb.  641 ;  Gray  v.  Mathias,  5 
Ves.  286 ;  Hall  v.  Palmer,  3  Hare,  532  ;  Kyne  v.  Moore,  1  Sim.  &  Stu.  61 ;  2  Sim.  &  Stu. 
260  ;  Inge  v.  Moseley,  6  Barn.  &  Ores.  133,  E.  C.  L.  R.  vol.  13 ;  2  Sim.  161. 

(p)  Binnington  v.  Wallis,  4  Barn.  &  Aid.  650,  952*,  E.  C.  L.  R.  vol.  61 ;  a7ite,  p.  69. 

{q)  Gaskell  v.  King,  11  East,  165;  Wigg  ij.  Shuttleworth,  13  East,  87;  Howe  v.  Synge, 
15  East,  440  ;  in  all  which  decisions  unlawful  covenants  to  pay  the  property  tax  were  held 
not  to  vitiate  other  valid  covenants  in  the  same  instrument.  See  also,  Kerrison  v.  Cole,  8 
East,  231;  Mallan  v.  May,  11  Mee.  &  Wels.  653;  Green  v.  Price,  13  Mee.  &  Wels.  695, 
affirmed,  16  Mee.  &,  Wels.  346  ;  Nichols  v.  Stetton,  10  Q.  B.  346,  E.  C.  L.  R.  vol.  59. 

(r)  See  Biddell  v  Leeder,  1  Barn.  &  Cress.  327,  E.  C.  L.  R.  vol.  8,  decided  on  the  old 
Ship  Registry  Act. 

[s)  See  1  Smith's  Leading  Cases,  169,  and  the  statutes  recited  in  the  preamble  to  5  A  6 
Will.  IV,  c.  41. 

(1)  Fetherston  v.  Hutchinson,  Cro.  Eliz.  1S9 ;  Bridge  v.  Cage,  Cro.  Jac.  103.  See,  also, 
per  Tindal,  C.  J.,  in  Waite  v.  Jones,  1  Bing.  N.  C,  662,  E.  C.  L.  B.  vol.  27;  Hopkins  v. 
Prescott,  4  C.  B.  578,  E.  C.  L.  R.,  vol.  56,. 


'  See  ante,  p.  84,  note  I. 


164  OF   CHOSES  IN   ACTION. 

or  publication  of  any  libellous  or  immoral  book  or  print; (?<)  A 
striking  instance  of  a  contract,  void  on  account  of  its  object  being 
contrary  to  the  policy  of  tlie  common  law,  occurs  in  the  case  of  a 
contract  in  restraint  of  trade.  It  is  for  the  advantage  of  the 
community  that  every  person  should  be  allowed  the  full  exercise 
of  his  trade  or  profession  ;  and  any  contract  whereby  a  person  is 
attempted  to  be  restrained  from  his  usual  calling,  even  for  a  lim- 
ited time,  is  therefore  absolutely  void.(a:)*  But  a  contract  is  not 
rendered  void  by  having  for  its  object  the  restraint  of  a  person 
from  trading  in  a  particular  place,(i/)  or  within  a  reasonable  dis- 
tance from  any  particular  place, (2)  for  he  may  carry  on  his  trade 
elsewhere ;  nor  is  a  contract  void  which  restrains  a  person  from 
serving  a  particular  class  of  customers  (a)  (for  there  are  plenty  of 
others  to  be  found),  or  which  binds  a  person  to  be  the  servant  for 

(m)  Fores  v.  Johnes,  4  Esp.  97 ;  Stockdale  v.  Onwhyn,  5  Barn.  &  Cres.  173,  E.  C.  L.  R. 
vol.  11 ;  S.  C.  7  Dow.  &  Ry.<25  ;  Lawrence  v.  Smith,  Jac.  471. 

(x)  Year  Book,  P.  2  Hen.  V,  pi.  26;  Ward  v.  Byrne,  6  Mee.  &  Wels.  548;  Hind  v. 
Gray,  1  Man.  &  Gran.  195,  E.  C.  L.  R.  vol.  39. 

(y)  Hitchcock  v.  Coker,  6  Ad.  &  El.  438,  E.  C.  L.  R.  vol.  33 ;  S.  C.  1  Nev.  &  P.  796  ; 
Archer  v.  Marsh,  6  Ad.  &  Ell.  959,  E.  C.  L.  R.  vol.  33  ;  S.  C.  2  Nev.  &  P.  562 ;  Leighton 
V.  Wales,  3  Mee.  &  Wels.  545. 

(z)  Davis  V.  Mason,  5  T.  Rep.  118  ;  Proctor  v.  Sergeant,  2  Man.  &  Gr.  20,  E.  C.  L.  R. 
vol.  40  ;  S.  C.  2  Scott,  N.  R.  289  ;  Whittaker  v.  Howe,  3  Beav.  .383  ;  Pemberton  v.  Vaughan, 
10  Q.  B.  87,  E.  C.  L.  R.  vol.  59  ;  Atkyns  v.  Kinnier,  4  Ex.  Rep  776  ;  Elves  v.  Crofts,  10 
C.  B  241,  E.  C.  L.  R.  vol.  70  ;  Avery  v.  Langford,  1  Kay,  663,  667,  where  the  cases  are 
collected. 

(c)  Rannie  v.  Irvine,  7  Man.  &  Gr.  969,  E.  C.  L.  R.  vol.  49. 


1  A  contract  in  restraint  of  trade  is  only  Palmer  v.  Stebbins,  3  Pick.  R.  188  ;  Cuppell 
held  to  be  void,  when  such  an  agreement  is  v.  Brockway,  21  Wend.  R.  158  ;  Rossf .  Sady- 
against  public  policy ;  if,  therefore,  the  stipu-  beer.  Id.  166;  Bowser  w.  Bliss,  7  Blackf.  R. 
lations  of  the  contract  are  such  as  to  occasion  345  ;  Perkins  v.  Lyman,  9  Mass.  R.  522  ; 
no  serious  detriment  to  the  interest  of  the  Stearns  v.  Barrett,  1  Pick.  R.  443  ;  Law- 
public,  the  agreement  will  be  binding;  as,  for  rence  v.  Kidder,  10  Barb.  S.  C.  R.  641; 
example,  a  covenant,  made  by  one  not  to  car-  Mott  v.  Mott,  11  Id.  127  :  Gilman  v.  Dwight, 
ry  on  a  trade  in  a  specified  locality,  if  based  13  Gray's  R.  396  ;  DuflFy  v.  Shockey,  11  Ind. 
upon  a  consideration  otherwise  legal,  is  valid,  R.  70  ;  Grasselli  v.  Lowden,  11  0.  R.  (N.  S.) 
because  it  is  not  considered  of  disadvantage  to  349;  California  Steam  Nav.  Co.  v.  Wright, 
the  public  generally,  particularly  where  the  6  Gal.  R.  258  ;  Kinsman  v.  Parkhurst,  18 
other  party  to  the  contract,  as  is  usually  the  How.  U.  S.  R.  289  ;  Whitney  «.  Slayton,  40 
case,  is  qualified  to  conduct  the  business.  Maine  R.  224;  Van  Marter  v.  Babcock,  23 
For  a  full  consideration  of  this  point,  see  the  Barb.  R.  633  ;  Alcock  v.  Giberton,  5  Duer's 
following  cases,  which  are  believed  to  be  the  R.  76  ;  Herchew  v.  Hamilton  3  Iowa  R. 
principal  of  the  American  decisions  on  the  596  ;  Kellogg  t'.Larkin,  3  Chand.  R.  133. 
question;  Pierce  v.  Fuller,   8  Mass.  R.  223; 


OF   CONTRACTS.  165 

life  in  his  trade  to  anotlier,(6)  for  this  is  not  in  restraint  *of  r^o^n 
trade  when  it  is  to  be  carried  on  for  his  life.     In  a  recent  -' 

case(c)  a  person  agreed  that  he  would  become  assistant  to  a  dent- 
ist for  four  years,  and  that  after  the  expiration  of  that  term  he 
would  not  carry  on  the  business  of  a  dentist  in  London,  or  any 
of  the  towns  or  places  in  England  or  Scotland  w'here  the  dentist 
might  have  been  practising  before  the  expiration  of  the  service. 
And  it  was  held  that  the  covenant  not  to  practice  in  London  was 
valid ;  but  that  the  stipulation  as  to  the  other  towns  and  places  in 
England  or  Scotland  was  void.  And  according  to  the  rule  above 
mentioned,(c?)  that  where  some  of  the  objects  of  a  contract  are 
lawful  and  others  unlawful,  the  unlawful  objects  will  not  vitiate 
the  others,  it  was  held  that  the  stipulation  as  to  practising  in  Lon- 
don was  not  affected  by  the  illegality  of  the  remainder  of  the 
agreement. 

The  cases  in  which  contracts  may  be  void  in  consequence  of 
their  contravening  some  acts  of  Parliament  are  too  numerous  to 
be  here  specified.  As  an  instance  may  be  mentioned  contracts 
by  clergymen  holding  benefices  with,  cure  of  souls,  made  for  the 
purpose  of  charging  such  benefices  with  any  sum  of  money; 
which  contracts  are  rendered  void  by  a  statute  of  Elizabeth. (e) 
And  in  these  cases  it  has  been  held  that  any  personal  covenant 
for  the  payment  of  the  money  charged  is  not  invalidated  by 
being  contained  in  the  same  deed  as  the  attempted  charge  on  the 
benefice.(/)  Contracts  for  the  sale  or  transfer  of  stock,  of  which 
the  person  contracting  was  not  possessed  at  the  time,  and  of  which 
no  transfer  *was  intended  to  be  made,  were  formerly  void  r^r^r,-, 
by  the  Stock  Jobbing  Act  ;(gy  and  money  lent  for  the  *-       -^ 

(h)  Wallis  V.  Day,  2  Mee.  &  Wels.  273. 

(c)  Mallan  v.  May,  11  Mee.  &  Wels.  653.  See  also  Green  v.  Price,  13  Mee.  &  Wels.  695, 
affirmed,  16  Mee.  &  Wels.  346  j  Nichols  v.  Stretton,  10  Q.  B.  346,  E.  C.  L.  R.  vol.  59. 

(d)  Ante,  p.  85. 

(e)  Stat.  13  Eliz.  c.  20.  See  Shaw  v.  Pritchard,  10  Barn.  &  Cress.  241,  E.  C.  L.  R.  vol. 
21 ;  Long  V.  Storie,  3  De  Gex  &  Smale,  308. 

(/)   Monys  v.  Leake,  8  T.  Rep.  411 ;  Sloane  v.  Packman,  11  Mee.  &  Wels.  770. 
(g)  Stat.  7  Geo.  II,  c.  8,  s.  8.     See/)o««,  the  chapter  on  Stock. 

^  This  subject  does  not  seem  to  have  been  enacted  by  the  6th  sec.  of  an  act  of  the  leg- 
considered  of  sufficient  importance  in  several  i.slature  of  May  22,  1841,  that,  "  If  any  per- 
of  the  United  States,  to  require  .statutory  reg-  son  or  per.?ons  whatsoever,  shall  make  or  en- 
ulation.     In    Pennsylvania,  however,  it  was  ter  into  any  contract  or  agreement,   written 


166 


OF   CHOSES   IN   ACTION. 


purpose  of  settling  losses  which  had  arisen  from  such  illegal 
contracts  could  not  be  recovered  back.(/i)  But  this  act  is  now 
repealed.(«)  Securities  for  money  won  at  play  or  any  game, 
or  by  betting  on  any  game,  or  for  money  lent  for  gaming  or 
betting  at  the  time  and  place  of  such  play,  were  declared  by  a 
statute  of  Anne  to  be  utterly  void ;(/.:)*  but  by  a  later  8tatute(^) 

(h)  Cannan  v.  Bryce,  3  Barn.  &  Aid.  179,  E.  C.  L.  R.  vol.  5. 

(t)  Stat.  23  Vict.  c.  28. 

(k)  Stat.  9  Anne,  c.  14. 

(/)   5  &  6  Will.  IV,  c.  41  ;  Hawker  v.  Hallewell,  3  Sma.  &  Gifi".  194. 


or  oral,  for  the  purchase,  receipt,  sale,  deliv- 
ery, or  transfer,  of  any  public  loan  or  stock,  or 
the  stock  of  any  corporation,  institution,  or 
company,  or  other  security  in  the  nature 
thereof,  or  of  any  share  or  interest  in  any 
such  loan  or  stock,  or  in  the  stock  of  any 
such  corporation,  institution,  or  company,  or 
other  security  in  the  nature  thereof,  or  any 
bill,  notes,  or  other  obligations,  of  any  corpo- 
ration, institution,  or  company,  created  oi 
authorized,  or  that  may  be  hereafter  created 
or  authorized  as  aforesaid,  in  which  contract 
or  agreement,  it  may  be  stipulated  or  under- 
stood between  the  parties  thereunto,  his,  her, 
or  their  agent  or  agents,  that  the  same  may 
be  executed  or  performed  at  any  future  period, 
exceeding  five  judicial  days  next  ensuing  the 
date  of  such  contract  or  agreement  ;  then, 
and  in  every  such  case,  such  contract  or 
agreement  shall  be,  and  the  same  is  hereby 
declared  to  be  null  and  void,"  Ac.  ;  Purd. 
Dig.  (1861),  p.  127.  But  this  section  has 
been  repealed  by  the  act  of  the  17th  of  April, 
1862,  Purd.  Dig.  Suppl.  (1864),  p.  1266. 

And  in  New  York,  it  was  formerly  the  law 
that  "all  contracts,  written  or  verbal,  for  the 
sale  or  transfer  of  any  certificate,  or  other 
evidence  of  debt  due,  by  or  from  the  United 
States,  or  any  separate  State,  or  of  any  share 
or  interest  in  the  stock  of  any  bank,  or  of 
any  company  incorporated  under  any  law  of 
the  United  States,  or  of  any  individual  State, 
shall  be  absolutely  void,  unless  the  party 
contracting  to  sell  or  transfer  the  same,  shall, 
at  the  time  of  making  such  contract,  be  in 
actual  possession  of  the  certificate  or  other 
evidence  of  such  debt,  share  or  interest,  or  be 
otherwise  entitled  in  his  own  right,  or  be  duly 
authorized  by  some  person  so  entitled,  to  sell 
or  transfer  the  said  certificate  or  other  evi- 


dence of  debt,  share  or  interest,  so  contracted 
for;"  Revis.  Stats,  of  N.  Y.,  vol.  i,  p.  892. 
But  this  law  has  also  been  repealed,  Revis. 
Stats,  of  N.  Y.  (18.59),  vol.  ii,  p.  980 

1  Statutes  against  gaming  exist  in  al- 
most all  the  States  in  the  Union  ;  and,  even 
in  those  States  where  all  betting  and  gaming 
has  not  been  prohibited  by  statute,  the  judi- 
ciary have  decided  that,  where  it  is  of  an  im- 
moral tendency,  or  detrimental  to  public  pol- 
icy, it  is  unlawful  ;  Bevil,  &c.,  v.  Hix,  12  B. 
Mon.  R.  142;  Hickerson  v.  Benson  et  al.,  8 
Mo.  R.  8 ;  Sisk  v.  Evans,  Id.  52  ;  Dewes  v. 
Miller,  5  Barring.  R.  347  ;  Trenton  Ins.  Co.  v. 
Johnson,  4  Zabr.  R.  576  ;  Porter  v.  Sawyer, 
1  Barring.  R.  517  ;  in  this  last  case,  the  chief 
justice  remarks,  "  As  a  general  proposition, 
it  is  lawful  to  bet.  Contracts  of  this  kind 
may  be  entered  into,  and  the  obligations 
arising  from  such  contracts  must  be  enforced 
by  courts  and  juries,  if  they  be  not  such  as 
to  affect  the  good  of  society,  corrupt  public 
morals,  or  infringe  upon  the  private  rights 
or  feelings  of  third  persons."  Thus,  a  bet  on 
the  age  of  a  lady,  or  the  sex  of  a  person,  or 
the  issue  of  a  general  election,  whilst  pending, 
"would,  undoubtedly,  be  illegal,  as  being 
against  public  policy,  and  hurtful  to  society." 
For  _a  further  consideration  of  the  statutes 
against  gaming,  and  the  construction  placed 
upon  them  by  the  courts  of  the  several  States, 
see  the  following  cases :  Finn  et  al.  v.  Bar- 
clay et  al  ,  15  Ala.  R.  627  ;  Manning  v. 
Manning,  8  Id.  138;  Givens  v.  Rogers,  11  Id- 
543  ;  Stone  v.  Mitchell,  2  Eng.  R.  91 ;  Abrams 
et  al.  V.  Camp,  3  Scam.  R.  290 ;  Parsons  v. 
The  State,  2  Port.  (Ind.)  R.  499  ;  Danforth 
V.  Evans,  16  Vt.  R.  538  ;  Mureau  v.  Langley 
et  al.,  21  Maine  R.  26  ;  Bevil,  &o.,  v.  Hix,  12 
B.  Mon.  R.  142;   McKinney  v.  Pope's  Admr. 


OF   CONTRACTS.  167 

such  securities  are  not  to  be  utterly  void,  but  are  to  be  taken  to 
have  been  given  for  an  illegal  consideration ;  they  are  consequently 
now  void  only  as  between  the  parties,  but  valid  in  the  hands  of 
any  innocent  holder,  to  whom  they  may  have  been  transferred 
without  notice  of  the  illegality  of  the  transaction  in  which  they 
originated. (w)  And  by  a  more  recent  statute(n)  it  is  enacted, 
that  all  contracts  or  agreements,  whether  by  parol  or  in  writing, 
by  way  of  gaming  or  wagering,  shall  be  null  and  void;  and  that 
no  suit  shall  be  brought  or  maintained  in  any  court  of  law  or 
equity  for  recovering  any  sum  of  money  or  valuable  thing  alleged 
to  be  won  upon  any  wager,  or  which  shall  have  been  deposited  in 
the  hands  of  any  person  to  abide  the  event  on  which  any  wager 
shall  have  been  made.  But  this  enactment  is  not  to  apply  to  any 
subscription  or  contribution,  or  agreement  to  subscribe  or  con- 
tribute, for  or  towards  any  plate,  prize  or  sum  of  money  to  be 
awarded  to  the  winner  or  winners  of  any  lawful  game,  sport, 
pastime,  or  exercise.  Contracts  for  the  payment  of  money, 
whereby  there  should  be  reserved  more  than  five  per  cent, 
interest,  were  in  like  manner  declared  void  by  a  statute  of  Anne, 
called  the  Usury  *Law;(o)  but  in  order  to  protect  innocent  rH=oQ-| 
holders  of  securities  given  for  usurious  consideration,  it 
was  subsequently  declared  that  such  contracts  should  not  be 
absolutely  void,  but  should  be  considered  to  have  been  made  for 
an  illegal  consideration. (p)  However,  by  a  statute  of  the  reign 
of  King  William  the  Fourth,(5')  it  was  provided  that  no  bill  of 
exchange  or  promissory  note  made  payable  at  or  within  three 
months  after  the  date  thereof,  or  not  having  more  than  three 
mouths  to  run,  should  be  void  by  reason  of  any  interest  taken 
thereon  or  secured  thereby,  or  any  agreement  to  pay  or  receive 

(m)  See  ante,  p.  82.  (p)   Stat.  5  &  6  Will.  IV,  c.  41. 

(n)  Stat.  8  &  9  Vict.  c.  109,  s.  18.  (q)  Stat.  3  &  4  Will.  IV,  c.  98,  s.  7. 

(o)   Stat.  12  Anne,  st.  2,  ch.  16. 

3  Id.  93 ;  Lytle  v.  Lindsay,  Id.  125  ;  Ellis  v.  et  al.,  9  Ired.  L.  R.  378  ;   Bledsoe  v.  Thomp- 

Beale,  18  Maine  R.  337  ;  Doyle  v.  The  Com-  son,  6  Richard.  R.  44  ;  Rioe  v.  Gist,  1  Strobh. 

missioners  of  Baltimore   County,   12   Gill   A.  L  R.  82  ;  Russell  v.  Pyland,  2  Hump.  R.  131  ; 

Johns.  R.  484  ;  Amory  v.  Gilman,  2  Mass.  R.  Swa^gerty  v.  Stokely,  1  Swan's  R.  38 ;  Tarle- 

1 ;  White  v.  Buss,  3  Cush.  R.  448  ;  Williams  ton  v.  Baker,  18  Vt.  R.  9;  Watson  v.  Fletcher. 

V.  Woodman,  8  Pick.  R.  78;  Terrall  v.  Ad-  7  Gratt.  R.  19  ;   Machir  v.  Moore,  2  Id.  257  ; 

ams,  23  Miss.  R.  570  ;    Ru.sh  v.  Gott,  9  Cow.  Commonwealth  v.  Robbins,  26  Pa.  St.  R.  165; 

R.  173  ;  Brown  v.  Riker,  4  Johns.  R.  438  ;  Collins  v.  Merrell,  2  Mete.  (Ky.)  R.  163. 
Collins  V.  Ragrew,  15  Id,  5  ;  Slate  v.  Black 


168  OF   CHOSES  IN   ACTION. 

or  allow  interest  in  discounting,  negotiating,  or  transferring  the 
same.  And  by  a  subsequent  8tatutc,{?')  all  bills  of  exchange  and 
promissory  notes  made  payable  at  or  within  twelve  months  after 
the  date  thereof,  or  not  having  more  than  twelve  months  to  run, 
and  all  contracts  for  the  loan  or  forbearance  of  money  above  the 
sum  of  10^.  sterling,  w^ere  exempted  from  the  operation  of  the 
Usury  Law.^  Nothing,  however,  contained  in  the  last-mentioned 
act  was  to  extend  to  the  loan  or  forbearance  of  any  money  upon 
security  of  any  lands,  tenements,  or  hereditaments,  or  any  estate 
or  interest  therein.  And  now,  by  an  act  passed  on  the  10th  of 
August,  1854, (s)  all  the  laws  against  usury  are  repealed.  But 
where  interest  is  now  payable  upon  any  contract,  express  or 
implied,  for  payment  of  the  legal  or  current  rate  of  interest,  or 
where  interest  is  payable  by  any  rule  of  law,  the  same  rate  is 
recoverable  as  before  the  act.(^) 

The  above  enactments  are  perhaps  the  most  important  statutory 
provisions  by  which  contracts  may  be  vitiated.     Contracts  whose 

(r)   2  &  3  Vict.  e.  37.  (0   Sect.  3. 

{s)   Stat.  17  &  18  Vict.  c.  90. 


1  The  rate  of  interest  established  by  law,  in  annum,  by  a  like  arrangement ;  and  in  Min- 

the  several  States,  is  as  follows  :  in  Maine,  New  nesota,  any  rate  of  interest  specified  in  writing 

Hampshire,  Vermont,   Massachusetts,  Rhode  is  legal.    A  distinction,  also,  is  to  be  noticed, 

Island,  Connecticut,  New  Jersey,  Pennsylva-  between  an  agreement  to  take  usurious  inter- 

nia,    Delaware,    Maryland,  Virginia,   North  est,  and  the  actual  taking  thereof;   in  some 

Carolina,  Tennessee,   Kentucky,   Ohio,  Indi-  States,  while  the  former  is  void  only  for  the 

ana,   Illinois,  Missouri,  Arkansas,  Iowa,  and  usurious  interest  agreed  upon,  and  the  agree- 

Mississippi,  six  per  cent,  per  annum  ;  in  New  ment  good  for  the  principal  and  legal  interest, 

York,  South  Carolina,  Michigan,  Wisconsin,  the  latter  (the  actual  taking  of  the  usurious 

Georgia,  and  Minnesota,  seven  per  cent. ;  in  interest)  forfeits  the  whole  sum,  principal  and 

Alabama,  Florida,  and  Texas,  eight  percent.  ;  interest,  upon  which  the  usurious  interest  has 

and  in  Louisiana  five  per  cent,  per  annum.    It  been  paid.    In  every  case,  therefore,  in  which 

does   not,   however,   necessarily  follow,  that  a  question  of  usury  is  raised,  it  will  depend 

every  contract  by  which  a  greater   rate  of  upon  a  sound  construction  of  the  statutes  of 

interest  is  reserved,   than  what    is   allowed  usury  of  the  State  where  the  contract  was 

by  law,  is  usurious,  for  in  some  States,  rriore  made,  whether  the  contract  shall  be  subjected 

than  the  amount  of  interest  specified  in  the  to  the  penalties  or  forfeitures  therein  provided, 

statute  may  be  taken,  by  a  liu7ia  fide,  agree-  These  penalties  or  forfeitures  are  different  in 

ment  between  the  parties  ;   as  in  Mississippi,  different  States. 

Louisiana,  and  Missouri,  eight  per  cent  per        For  further  on  the  subject  of  usury,  see  4 

annum   may    be   reserved   and    taken,    if  it  Am.  L.  Reg.  (N.  S.)   323,  note,  and 

be  agreed  upon  between  the  parties  ;   in  Ar-  84,  note  1  ;  also,  History  of  Usury, 

kansas,  Indiana,  and  Michigan,  ten  per  cent.;  C.  Murray, 
in  Wisconsin  and  Texas,  twelve  per  cent,  per 


id  a7ite,  p.       \ 
f,  by  J.  B.     J- 


OF   DEBTS.  169 

objects  are  lawful  are  endlessly  diversified,  and  many  of  them  are 
regulated  by  laws  which  it  *is  not  within  the  scope  of  the  p-^Q^.-. 
present  work  to  enumerate.  For  the  breach  of  any  such  '-  -' 
contract  pecuniary  damages  are,  as  we  have  seen,(M)  the  sovereign 
remedy  prescribed  by  law;  though  equity  not  unfrequently 
administers  more  appropriate  specifics.  The  person  to  whom 
money  has  become  due,  whether  from  any  injury  received,  or 
from  any  contract  broken,  or  from  a  contract  to  pay  money  itself, 
stands  in  a  situation  more  or  less. advantageous  as  regards  his 
remedies  for  recovering  the  money,  according  to  the  nature  of 
the  debt  which  has  thus  become  due  to  him.  For  by  the  law  of 
England  all  creditors  are  not  allowed  equal  rights,  but  are  pre- 
ferred the  one  to  the  other,  partly  according  to  accidental  cir- 
cumstances, and  partly  according  to  the  degree  of  diligence  and 
precaution  which  each  may  have  used.  The  subject  of  debt  is  of 
sufficient  importance  to  form  a  separate  chapter. 


*CHAPTER    III.  [*91] 

OF    DEBTS. 

Debts,  by  the  law  of  England,  are  divided  into  different  classes, 
conferring  on  the  creditor  different  degrees  of  security  for  re- 
payment. The  class  which  confers  the  highest  privileges  is  that 
of  debts  of  record,  which  class  will  accordingly  first  claim  our 
attention. 

A  debt  of  record  is  a  debt  due  by  the  evidence  of  a  court  of 
record.(a)  Every  court,  by  having  power  given  to  it  to  fine  and 
imprison,  is  thereby  made  a  court  of  record. (6)  Such  courts  are 
either  supreme,  superior,  or  inferior.  The  supreme  court  is  the 
Parliament.  The  superior  courts  of  record  are  the  House  of 
Lords,  the  Court  of  Chancery,  and  the  Courts  of  Queen's  Bench, 
Common  Pleas,  and  Exchequer,  which  are  the  more  principal 

(w)  A7ite,  p.  60.  (A)   Bac.  Abr.  tit.  Courts  (D),  2. 

(«)  2  Black.  Com.  465. 


170  OF   CHOSES   IN   ACTION". 

courts.  The  courts  of  the  Counties  Palatine  of  Lancaster  and 
Durham  are  also  superior  courts  of  record. (c)  Tlie  Court  of 
Bankruptcy  and  its  district  courts,  and  every  commissioner  thereof, 
also  exercise  and  enjoy  all  the  powers  and  privileges  of  a  court  of 
record  as  fully  as  the  courts  of  law  at  Westminster.((:Z)  The  Court 
of  Probate  is  also  a  court  of  record  ;[e)  and  so  is  the  High  Court  of 
Admiralty.(/)  The  inferior  courts  of  record  may  be  said,  gener- 
ally, to  consist  of  the  numerous  courts  established  throughout  the 
r*Q9i  country,  *under  the  recent  acts  for  the  more  easy  recovery 
•-     ""-^  of  small  debts  and  demands  in  England.(^) 

Debts  of  record  do  not,  however,  confer  the  same  advantages 
on  all  creditors  equally,  for  there  is  one  creditor  whose  claims  are 
paramount  to  all  others,  namely,  the  crown,  provided  the  debt  be 
a  debt  of  record,  or  a  debt  by  specialty,  that  is,  secured  by  deed.(A) 
And  if  the  debt  be  by  simple  contract  without  such  security,  it  will 
have  preference  over  the  other  simple  contract  creditors  of  the 
debtor,  and,  as  some  say,  even  over  other  creditors  by  specialty. (z)* 
The  lien  of  the  crown  on  the  lands  of  its  debtors  by  record  or  spe- 
cialty, and  also  on  the  lands  of  accountants  to  the  crown,  is  men- 
tioned in  the  author's  Treatise  on  the  Principles  of  the  Law  of  Real 
Property.(j) 

Of  all  debts  which  one  subject  may  owe  to  another,  that  which 
confers  the  most  important  remedy  is  a  judgment  debt,  or  a  debt 
which  is  due  by  the  judgment  of  a  court  of  record.  As  such  a 
debt  is  due  by  the  evidence  of  a  court  of  record,  it  is  of  course  a 
debt  of  record.  Such  a  debt  may  however  now  be  incurred,  without 
any  actual  exercise  of  judgment  on  the  part  of  the  court.     For, 

(c)   Ibid.  (D),  1.  (e)   Stat.  20  &  21  Vict.  c.  77,  s.  23. 

(«/)  Stat.  12  &  13  Vict.  c.  106,  s.  6.  (/)   Stat.  24  Vict,  c,  10,  s.  14. 

{g)  Stats.  9  &  10  Viet.  c.  95,  s.   3  ;   12  &  13  Viet.  c.  101  ;  13  &  14  Vict.  c.   61  ;  15  &  16 
Vict.  c.  54  ;   17.  &  18  Vict.  c.  16  ;  19  &  20  Vict.  c.  108 ;  21  &  22  Vict.  e.  74. 
(A)   'Williams  on  Executors,  pt.  3,  bk.  2,  ch.  2,  s.  1. 
(0   Bac.  Abr.,  tit.  Executors  (L),  2. 
(j)  Page  62,  1st  ed. ;  65,  2d  ed.  ;  70,  3d  &  4th  eds.  ;  76,  5th  ed.  ;  81,  6th  ed. 

1  The  common-law  prerogative  of  the  king,  Indiana,  and  Connecticut ;  it  does  not  subsist 

to  be  paid  in  preference  to  all  other  creditors,  in  South  Carolina.    1  Kt.  Com.,  pp.  243  to  248, 

is  not  univer.sally  adopted  in  this    country,  and  notes.     For  the  law  of  Pennsylvania  on 

It  prevails  in  the  government  of  the  United  this  subject,   see   Purd.   Dig.  (1861),  p.  284; 

States,   and    in  Maryland,   North  Carolina,  Ramsey's  Ap.,  4  Wat.  R.  73. 


OF   DEBTS.  171 

strange  as  it  may  appear,  a  judgment  against  a  defendant  in  au 
adverse  suit,  thougli  the  most  obvious,  is  yet  not  the  most  usual 
method  of  incurring  a  judgment  debt.  Such  a  debt  may  be  in- 
curred by  the  voluntary  default  of  the  defendant  in  making  no 
reply  to  the  action,  which  is  called  nihil  elicit,  or  by  his  failing  to 
instruct  his  attorney,  whose  statement  of  that  *circum8tance  [-.^.qo-i 
is  called  non  sum  informatus,  or  by  a  cognovit  actionem,  or  ^ 
more  shortly  cognovit,  b}' which  the  defendant  confesses  the  action, 
and  suiters  judgment  to  be  at  once  entered  up  against  him.(A-)  Of 
late  years  also  it  has  become  very  usual  for  the  parties  to  a  suit  to 
obtain,  by  consent,  a  judge's  order,  authorizing  the  plaintiff  to  enter 
up  judgment  against  the  defendant,  or  to  issue  execution  against 
him,  either  at  once  and  unconditionally,  or  more  usually  at  a  future 
time,  conditionally  on  the  non-payment  of  whatever  amount  may 
be  agreed  on.  A  judgment  obtained  on  a  judge's  order  for  im- 
mediate judgment  and  execution  is,  however,  the  same  thing  as  a 
judgment  by  nihil  dicit,  or  confession. (?)  The  most  frequent  method 
of  incurring  a  judgment  debt  is  not,  however,  attended  with  the 
actual  commencement  of  any  adverse  action.  A  warrant  of  attorney 
is  given  by  the  intended  debtor,  which  consists  of  an  authority 
from  him  to  certain  attorneys  to  appear  for  him  in  court,  and  to 
receive  a  declaration  in  an  action  of  debt  for  the  amount  of  the 
intended  judgment  debt,  at  the  suit  of  the  intended  creditor,  and 
thereupon  to  confess  the  action,  or  suffer  judgment  to  goby  default, 
and  to  permit  judgment  to  be  forthwith  entered  up  against  the 
intended  debtor  for  the  amount,  besides  costs  of  suit.^     Such  a 

(k)  3  Black.  Com.  397  ;  Stephen  on  Pleading,  120. 

(/)  Bell  V.  Bidgood,  8  C.  B.  763,  E.  C.  L.  R.  vol.  65  ;  Andrews  v.  Diggs,  4  Ex.  Kep.  827. 

'  In  New  York,  judgments  on  warrants  of  461 ;  and  sometimes,  the  court  will  refuse  to 

attorney,  may  be  entered   within  a  year  and  allow  a  judgment  to  be  entered  on  a  bond  and 

a  day  of  the  date  of  the  warrant,  as  a  matter  warrant,  less  than  twenty  years  old,  upon  the 

of  course;  after   that  time,    and  within  ten  presumption  of  payment;    Exrs.  of  Clark  v. 

year.?,  an  order  of  the  court,  or  of  a  judge  at  Hopkins,    7  Johns.  R.    556  ;   upon   a  similar 

chambers,  must  be  obtained  ;  between  ten  and  principle,   a  rule    of   the   Supreme  Court  of 

twenty  years  after  date,  judgment  can  only  Pennsylvania  provides,  that,    "If  a  warrant 

be  entered  by  order  of  court ;  and  after  twen-  to  enter  judgment   be   above  ten  years  old, 

ty  years,  the  order  will  not  be  made,  unless  a  and   less  than   twenty,    application    must  be 

rule  to  show  cause   is  first  had,  and   notice  made  to  a  judge  for  leave  to  enter  judgment, 

given  to  the  opposite  party,  if  within  the  reach  founded  on  an  aflBdavit  of  the  due  execution 

of  service;    Manufacturers   and   Mechanics'  of  the  warrant,  and  that  the  money  is  unpaid, 

Bank  of  the  Northern  Liberties  in  the  County  and  that  the  defendant  living.     If  the  war- 

of  Philadelphia  v.  Cowden  et  al.,  3  Hill's  R.  rant  of  attorney  be  above  twenty   years  old, 


172 


OF   CHOSES   IN   ACTION. 


warrant  of  attorney  is  generally  executed  as  a  security  for  a  smaller 
sum  of  money,  usually  one-half  of  the  amount  of  the  judgment 


a  rule  to  show  cause  must  be  obtained,  of 
which,  notice  must  be  given,  if  the  defendant 
be  within  the  State  of  Pennsylvania." 

There  can  be  but  one  judgment  entered  on 
a  warrant  of  attorney  to  confess  judgment  ; 
Campbell  v.  Kent,  3  Penn.  R.  72;  Ely  v. 
Karmany,  23  Pa.  St.  R.  314  ;  but  the  second 
judgment  is  not  void,  though  clearly  irregu- 
lar ;  Neff  et  al.  v.  Burr,  14  Serg.  &  Raw.  R. 
166  ;  Ulrich,  with  notice,  &c.,  v.  Voneida,  1 
Penna.  R.  245  ;  Campbell  v.  Canon,  Addis. 
R.  267  ;  Adams  v.  Bush,  2  Wat.  R.  289  ; 
Fairchild  v.  Camac,  3  Wash.  C.  C.  R.  558  ; 
and,  therefore,  where  two  or  more  are  jointly 
and  severally  bound,  and  judgment  be  en- 
tered against  one  on  warrant,  he  cannot  be 
joined  with  the  others  in  a  second  judgment 
against  all  the  defendants;  Manufacturers 
and  Mechanics'  Bk.  of  the  Northern  Liber- 
ties in  the  Co.  of  Phila.  v.  Cowden  et  al.,  3 
Hill's  R.  461  ,-  Averill  v.  Loucks,  6  Barb. 
Sup.  C.  R.  19. 

By  agreement  between  the  parties,  a  judg- 
ment on  warrant  may  cover  future  advances 
of  money ;  Chapin  v.  Clemitson,  1  Barb. 
Sup.  C.  R.  311  ;  Averill  v.  Loucks,  6  Id.  19  ; 
Monell  V.  Smith  et  al.,  5  Cow.  R.  441  ;  Bank 
of  Auburn  v.  Throop,  18  Johns.  R.  505  ; 
Roosevelt  v.  Mark  et  al.,  6  Johns  Ch.  R. 
279  ;  BrinkerhofiF  et  al.  v.  Marvin  et  al.,  5 
Id.  324;  Austin  et  al.  v.  Mclnlay,  16  Johns. 
R.  165  ;  Holden  et  al.  v.  Bull,  1  Penna.  R. 
460  ;  Parmenter  v.  ftillespie,  9  Pa.  St.  R.  87  ; 
Averill  v.  Loucks,  6  Barb.  Sup.  C.  R.  19  ; 
Troup  V.  Wood,  4  Johns.  Ch.  R.  247  ;  St.  An- 
drews's Ch.  V.  Tompkins,  7  Id.  14 ;  and  such 
an  agreement  ought  to  be  as  precise  as  a  bill 
of  particulars,  and  must  be  strictly  follow- 
ed ;  Lawless  v.  Hackett,  16  Johns.  R.  149; 
Chapin  v.  Clemitson,  1  Barb.  Sup.  C.  R. 
311  ;  Nelson  v.  Sharp,  4  Hill's  R.  584  ;  Nich- 
ols V.  Hewitt,  4  Johns.  R.  433  ;  and  where 
the  warrant  of  attorney  for  the  confession  of 
judgment,  was  to  be  exercised  upon  a  certain 
condition  or  contingency,  it  must  appear  that 
it  has  been  fulfilled  ;  Roundy  v.  Hunt,  24  111. 
R.  598  ;  Harwood  v.  Hildreth,  4  Zabr.  R.  51  ; 
Fuilerton's  Ap.  46  Pa.  St.  R.  144. 

The  court  will  not  set  aside  a  judgment  en- 


tered on  a  warrant  of  attorney,  merely  on  ac- 
count of  irregularity  ;  Kingu  Shaw,  3  Johns. 
R.  142  ;  McFarland  v.  Irwin,  8  Id.  77  ;  Han- 
er's  Appeal,  5  Wat.  &  Serg.  R.  473  ;  Lewis  v. 
Smith,  2  Serg.  &  Raw.  R.  142  ;  Humphreys  y. 
Rawn,  8  Wat.  R.  78;  Roemer  v.  Denig,  18 
Pa.  St.  R.  482  ;  but  if  a  warrant  of  attorney, 
made  under,  or  by  reason  of,  the  provisions  of 
a  certain  statute,  does  not  strictly  follow  it, 
the  judgment  will  be  void,  and  so  if  the  war- 
rant has  been  obtained  for  an  unlawful  pur- 
pose, or  upon  an  unlawful  consideration  ;  Ex 
parte  Butler  et  al.  v.  Lewis,  C.  P.  10  Wend. 
R.  541  ;  Judges  v.  The  People,  15  Id.  110; 
Everitt  v.  Knapp,  6  Johns.  R.  331  ;  Richmond 
V.  Roberts,  7  Id.  319  ;  Bennett  v.  Davis  etal., 
6  Cow.  R.  393;  Bontel  v.  Owens,  2  Sandf. 
Supr.  C.  R.  655  ;  The  Manhattan  Co.*.  Brow- 
er,  1  Cai.  R.  511  ;  Evans  v.  Begley,  2  Wend. 
R.  243  ;  Truscott  et  al.  v.  King,  6  Barb. 
Sup.  C.  R.  346  ;  Humphreys  v.  Rawn,  8  Wat. 
R.  78 ;  Hutchinson  v.  McClure,  20  Pa.  St.  R. 
63  ;  Davis  v.  Morris,  21  Barb.  R.  152  :  Barrett 
V.  Thompson,  5  Ind.  R.  457 ;  Richards  v.  Mc- 
Millan, 6  Cai.  R.  419  ;  and  a  judgment  en- 
tered without  filing  the  warrant,  or  formal 
confession  of  defendant,  will  be  set  aside  for 
irregularity  ;  Lytle  v.  Colts,  27  Pa.  St.  R. 
193 ;  Branning  v.  Taylor,  24  Id.  289.  Where 
there  is  a  dispute  about  facts,  the  court  will 
direct  a  feigned  issue  to  be  formed  ;  Frazier, 
Jr.,  V.  Frazier,  9  Johns.  R.  80  ;  Wintringham 
V.  Wintringham,  20  Id.  296  ;  Morey  v.  Shea- 
rer, 2  Cow.  R.  465  ;  Neff  et  al.  v.  Burr,  14 
Serg.  &  Raw.  R.  166  .-  Kindig  v.  March,  16 
Ind.  R.  248  ;  and  parol  evidence  is  admissi- 
ble to  show  that  a  judgment  on  a  warrant,  was 
entered  after  the  death  of  the  defendant ;  38 
Pa.  St.  R.  486. 

In  connection  with  the  subject  of  warrants 
of  attorney,  the  case  of  the  Man,  &  Mec.  Bk. 
of  Philadelphia  v.  St.  John,  5  Hill's  R.  500, 
deserves  notice  on  account  of  its  singularity. 
In  pronouncing  the  opinion  of  the  court, 
Bronson,  J.,  says,  "  The  authority  to  confess 
a  "judgment  without  process,  must  be  clear 
and  explicit,  and  must  be  strictly  pursued. 
If  the  parties  to  this  warrant  of  attorney 
intend  to  authorize  a  judgment  in  any  other 


OF   DEBTS.  173 

debt ;  and  it  is  accordingly  accompanied  by  a  defeasance,  which  must 
be  written  on  the  same  paper  or  parchment  as  the  warrant  of  at- 
torney.(m)  This  defeasance,  as  its  *name  imports,  defeats  r-^Q^-, 
the  full  operation  of  the  warrant  of  attorney,  by  declaring  •-  ^ 
that  it  is  given  only  as  a  security  for  the  smaller  sum  and  interest, 
and  that  no  execution  shall  issue  on  the  judgment  to  be  entered 
up  in  pursuance  of  the  warrant  of  attorney,  until  default  shall 
have  been  made  in  payment  of  such  sum  and  interest  at  the  time 
agreed  on  ;  but  that,  in  case  of  default,  execution  may  be  issued.(??,) 
The  defeasance  also  until  recently  contained  an  agreement  that  it 
should  not  be  necessary  for  the  creditor  to  issue  a  writ  of  scire 
facias,  or  do  any  other  act  for  reviving  the  judgment  or  keeping 
the  same  on  foot,  although  no  proceedings  should  have  been  taken 

(ot)  Reg.  Gen.  Hil.  1853,  s.  27;  stat.  3  Geo.  IV,  c.  39,  s.  4;  12  &  13  Vict.  c.  106,  s.  136. 
Collateral  securities  must  be  noticed;  Morell  v.  Dubost,  3  Taunt.  235.  If  the  attorney 
neglect  to  insert  the  defeasance,  the  security  is  not  void  between  the  parties,  but  only  as 
against  the  assignees  of  the  debtor,  in  case  of  his  bankruptcy ;  Shaw  v.  Evans,  14  East, 
576;  Morris  t?.  Methin,  6  Barn.  &  Cress.  446,  E.  C.  L.  R.  vol.  13;  Bennett  v.  Daniel,  10 
Barn.  &  Cress.  500,  E.  C.  L,  R.  vol.  21. 

{n)  Warrants  of  attorney  to  confess  judgment  for  securing  any  sum  or  sums  of  money 
are,  with  some  exceptions,  liable  to  the  same  duty  (one-eighth  per  cent,  on  the  money 
secured),  as  bonds  for  the  like  purpose;  stat.  13  &  14  Vict.  c.  97.     See^osi. 


State  than  Pennsylvania,  which  is  very  ques-  vania  courts  have  an  officer  of  that  name,  but 

tionable,  I  think  that  they  did  not   intend  we  have  not."     The  construction  here  given 

that   a  judgment  should  be  entered  in  this  to  the  instrument  in  question,  is  so  utterly 

State.     Both  the  bond  and  the  warrant  de-  contrary   to   the    known,  and   long   received 

scribe  two  of  the  obligors  as  residents  of  the  reading,  of  a  form  in  common  use  in  Pennsyl- 

State  of  Pennsylvania,  the  third  as  a  resident  vania,  and  to  the  plain  meaning  of  the  words 

of  New  Jersey.   The  warrant  is  addressed  'to  used,   that  it  is  difficult  to   understand  how 

John  D.  Smith,  Esq.,  attorney  of  the  Court  such  a  decision  could  have  been  made, 

of  Common    Pleas    of    Philadelphia,    in   the  See  further  on  the  subject  of  warrants  of 

county  of  Philadelphia,  in  the  State  of  Penn-  attorney,  and  judgements  thereon,  the  follow- 

sylvania,  or  to  any  other  attorney  of  the  said  ing  cases  ;  Montelius  v.  Montelius,  5  Pa.  L. 

court,  or  of  any  other  court,  there,   or  else-  Jour.  92  ;  Helvete  v.  Rapp,  7  Serg.  &  Raw. 

where,  or  to  any  prothonotary  of  any  of  the  R.  306  ;  Commonwealth  to  the  use,    Ac,   v. 

said  courts.'      The    only   thing    which    can  Conrad  etal.,  1  Raw.  R.  249  ;  Rabe  v.  Hes- 

carry  the  power  beyond  the  courts  at  '  Phila-  lip  et  al.,   4   Pa.   St.    R.    139;  McCalmont, 

phia,'  is  the  word  '  elsewhere  ;'  and  although,  Admr.  v.  Peters,  13  Serg.  &  Raw.  196  ;  Hays 

if  the  parties  had  stopped  there,  the  authority  v.   The  Commonwealth,    14  Pa.  St.   R.   39  ; 

might  have  extended  to  our  courts,  the  scope  Chambers  v.  Denie,  2  Pa.  St.  R.  422  ;  Enew 

of  the  word   '  elsewhere'  is  restricted  by  the  v.  Clark,  Id.  234  ;  Hall  et  al.  v.  Law,  2  Wat. 

words  which  immediately  follow  it,  '  or  to  any  &  Serg.  R.  135  ;  Finney  v.   Ferguson,  3  Id. 

protkunotary  of  any  of  the  said  courts.^   Thi.s  413  ;  Chambers  v.  Harger,  18  Pa.  St.  R.  16  ; 

shows  that  the  parties  were  speaking  of  such  James  v.  Jarrett,  5  Id.  370  ;   Kirkbride  et  al. 

courts  as  had  an  officer  called  a  '  prothono-  v.  Burden,  1  Dal.  R.  288  ;  Baker  v.  Lukens. 

tary,'  and  such  courts  only.     The  Pennsyl-  35  Pa.  St.  R.  146. 


174  OF    CIIOSES   IN    ACTION. 

thereupon  for  the  space  of  one  year.  Without  such  a  provision, 
no  execution  could  be  issued  after  the  expiration  of  a  twelvemonth 
from  the  date  of  the  judgment,  without  the  expense  and  trouble 
of  a  writ  oi  scire  facias,  calling  on  the  debtor  to  inform  the  court, 
or  show  cause,  why  execution  should  not  be  issued.(o)  But  the 
Common  Law  Procedure  Act,  1852,  now  provides  that  during  the 
lives  of  the  parties  to  a  judgment,  or  those  of  them  during  whose 
lives  execution  may  at  present  issue  within  a  year  and  a  day  with- 
out a  scire  facias,  and  within  six  years  from  the  recovery  of  the 
judgment,  execution  may  issue  without  a  revival  of  the  judg- 
meut.(  j:»)  A  warrant  of  attorney  is  also  sometimes  given  for  enter- 
ing up  judgment  for  a  sum  of  money,  in  order  to  secure  the 
regular  payment  of  an  annuity;  in  which  case  the  defeasance,  of 
course,  expresses  that  no  execution  shall  be  issued  until  default 
shall  have  been  made  for  so  many  days  in  some  payment  of  the 
annuity,  but  that,  in  case  of  such  default,  execution  may  be  issued 
from  time  to  time.(^) 

^^  -.  *A  warrant  of  attorney  need  not  be  under  seal,(r)  though 
^  -"it  generally  is  so.  In  order  to  guard  against  any  im- 
position in  procuring  debtors  to  execute  warrants  of  attorney  or 
cognovits  in  ignorance  of  the  efi'ect  of  such  instruments,  it  is 
provided(5)  that  no  warrant  of  attorney  to  confess  judgment  in 
any  personal  action,  or  cognovit  actionem,  given  by  any  person, 
shall  be  of  any  force,  unless  there  shall  be  present  some  attorney 
of  one  of  the  superior  courts  on  behalf  of  such  person,  expressly 
named  by  him  and  attending  at  his  request,  to  inform  him  of  the 
nature  and  effect  of  such  warrant  or  cognovit,  before  the  same  is 
executed ;  which  attorney  shall  subscribe  his  name  as  a  witness 
to  the  due  execution  thereof,  and  thereby  declare  himself  to  be 
attorney  for  the  person  executing  the  same,  and  state  that  he 
subscribes  as  such  attorney.^     And  a  warrant  of  attorney  or 

(o)   Stat.  Westm.  the  second,  13  Edw.  I,  c.  45. 

{p)  Stat.  15  &,  16  Vict.  c.  76,  s.  128. 

(^f)   See  Cuthbert  v.  Dobbin,  1  C.  B.  278,  E.  C.  L.  R.  vol.  50. 

(r)   Kinnersley  v.  Mussen,  5  Taunt.  264,  K  C.  L.  R.  vel.  1. 

is)  Stat.  1  &  2  Vict.  c.  110,  a.  9. 

1  This  doctrine  has  been  applied  in  the  thus.  Mason,  J.,  in  Butel  v.  Owens,  2  Sandf. 
State  of  New  York,  to  the  execution  of  a  Supe.  C.  R.  655,  says,  "It  has  long  been  a 
warrant  of  attorney  by  a  person  in  custody  ;    rule  of  the  English  courts,  that  no  warrant 


OF   DEBTS.  175 

cognovit  not  executed  in  manner  aforesaid,  shall  not  be  rendered 
valid  by  proof  that  the  person  executing  the  same  did  in  fact 
understand  the  nature  and  effect  thereof,  or  was  fully  informed 
of  the  same.(^)  Every  acknowledgment  of  satisfaction  of  a  judg- 
ment is  also  required  to  be  attested  in  a  similar  manner.(i<)^ 
Since  the  act  for  registering  writs  of  execution, (x)  warrants  of 
attorney  have  become  much  less  frequent  than  before. 

J^ot  only  was  there  a  risk  of  debtors  being  imposed  upon,  in 
being  prevailed  on  to  execute  warrants  of  attorney,  but  creditors, 
also,  were  formerly  liable  to  be  defrauded,  by  their  debtors  giving 
secret  warrants  of  attorney,  cognovits,  or  judge's  orders,  to  some 
favored  creditors,  to  the  prejudice  of  the  others.  In  order  to 
*obviate  this  inconvenience,  provision  has  been  made  by  r-^Q^-, 
modern  acts  of  Parliament  for  the  filing,  in  the  ofiice  of  ^  -^ 
the  Court  of  Queen's  Bench,  of  all  warrants  of  attorney,  with  the 
defeasances  thereto,  and  of  all  cognovits,  and  of  all  such  judge's 
orders  as  before  mentioned,  or  of  copies  thereof,  within  twenty- 
one  days  after  their  execution.(?/)  And,  in  the  event  of  the 
bankruptcy  of  the  debtor  after  the  expiration  of  this  time,  unless 
any  such  warrant  of  attorney,  or  cognovit,  or  judge's  order,  or  a 


(0  Sect.  10  ;  Potter  v.  Nicholson,  8  Mee.  &  Wels.  494  ;  Everard  v.  Poppleton,  5  Q.  B. 
181,  E.  C.  L.  R.  vol.  48  ;  Pocock  v.  Pickering,  18  Q.  B.  789,  E.  C.  L.  R.  vol.  83. 

(«)   Reg.  Gen.  Hil.  1853,  s.  80. 

(x)  Stat.  23  &  24  Vict.  c.  38.     See  Principles  of  the  Law  of  Real  Property,  p.  79,  6th  ed. 

(y)  Stat.  3  Geo.  IV,  c.  39,  ss.  1,  3  ;  12  &  13  Vict  c.  106,  s.  137.  The  twenty-one  day.-^ 
are  reckoned  exclusively  of  the  day  of  e.xecution  ;  Williams  v.  Burgess,  12  Ado).  &  Ell. 
635,  E.  C.  L.  R.  vol.  40. 


of  attorney  executed  by  any  person  in  custo-  somewhat   singular,  that  this  principle  has 

dy  of  any  sheriff  or  other  officer,  for  the  con-  not  with  us,  as  in  England,  been  extended  to 

fession  pf  any  judgment,  shall  be  valid  or  of  cases  of  warrants  of  attorney  other  than  those 

any  force,  unless  there  be  present  some  attor-  executed  by  prisoners  ;  such  a  rule,  applied 

ney  on  behalf  of  such  person  in  custody,  to  be  to  the  execution  of  all  warrants  of  attorney, 

natoed  by  him,  and  attending  at  his  request,  could  be  productive  of  no  injury,  but  would, 

to  inform  him  of  the  nature  and  effect  of  such  on  the  contrary,  tend  to  prevent  fraud  or  im- 

warrant  of  attorney,  before  the  game  is  exe-  position. 

cuted  ;  and  the  attorney  is  required  to  sub-  '  By  a  rule  of  the   District   Court  for  the 

scribe  his  name  to  the  due  execution  there-  City  and  County  of  Philadelphia,  no  satisfac- 

of This  rule  was  never  adopted  tion  of  a  judgment  shall  be  entered  of  record, 

in  terras  by  the  Supreme  Court  of  this  State,  unless  attested  by  the  prothonotary,  or  by  one 

but  the  practice  of  the  court  appears  to  have  of  his  clerks,  with  the  date  of  the  entry, 

always  been  in  accordance  with  it."     It  is  ' 


176  OF   CHOSES   IN   ACTION. 

copy  thereof,  shall  have  been  filed  within  the  time  above  limited, 
the  same  is  now  void  as  against  the  assignees  of  the  bankrupt,(2:) 
although  judgment  may  have  been  signed  within  the  time. (a) 
And  a  list  of  such  warrants  of  attorney,  cognovits,  and  judge's 
orders,((?^)  and  also  an  index  containing  the  names,  additions,  and 
descriptions  of  the  persons  giving  the  8ame,(c)  is  directed  to  be 
kept  by  the  oflicer  of  the  Queen's  Bench,  open  to  public  inspec- 
tion and  search  on  payment  of  a  small  fee.  It  is  also  provided 
that  every  warrant  of  attorney  to  confess  judgment  in  any 
personal  action  given  by  any  bankrupt,  within  two  months  of 
the  filing  of  a  petition  for  adjudication  of  bankruptcy  by  or 
against  such  bankrupt,  and  being  for  or  in  respect  of  (wholly  or 
in  part)  an  antecedent  debt  or  money  demand,  and  every  cognovit 
actionem  or  consent  to  a  judge's  order  for  judgment  given  by  any 
bankrupt,  within  two  months  of  the  filing  of  any  such  petition  in 
any  action  commenced  by  collusion  with  the  bankrupt,  and  not 
adversely,  or  purporting  to  be  given  in  an  action,  but  having  in 
fact  been  given  before  the  commencement  of  any  action  against 
Y^nfj-i  the  bankrupt,  such  *bankrupt  bemg  unable  to  meet  his 
'-  -'  engagements  at  the  time  of  giving  such  warrant  of  attor- 
ney, cognovit  actionem,  or  consent  (as  the  case  may  be),  shall  be 
void,  whether  the  same  shall  have  been  given  by  such  bankrupt 
in  contemplation  of  bankruptcy  or  not.((^) 

In  addition  to  these  precautions,  other  provisions  have  been 
made  to  prevent  an  undue  preference  being  given  to  one  creditor 
over  the  others  by  means  of  a  warrant  of  attorney,  cognovit,  or 
judge's  order,  in  the  event  of  the  debtor  becoming  banki-upt.* 
When  once  the  judgment  of  a  court  of  record  was  allowed  to  be 
diverted  from  its  proper  end  of  expressing  and  enforcing  the 
opinion  of  the  court,  to  serve  the  purpose  of  a  mere  security  for 
money  due,  it  was  found  necessary  to  guard  its  use  by  provisions 
of  the  legislature,  which  have  added  much  to  the  intricacy  of  the 
law.     The  eftect  of  these  provisions  appears  to  be,  that  if  a  judg- 

(z)   Stat.  13  &  13  Vict.  c.  106,  ss.  136,  137  ;  Bryan  v.  Child,  5  Ex.  Rep.  368. 

(a)  Acraman  v.  Herniman,  Q.  B.  15  Jur.  1008  ;  16  Q.  B.  998,  E.  C.  L.  R.  vol.  71 ;  Far- 
row V.  Mayes,  2  B.  17  Jur.  132  ;  18.  Q.  B.  516,  E.  C.  L.  R.  vol.  83. 

(b)  Stat.  3  Geo.  IV,  c.  39,  s.  5 ;  12  &  13  Vict,  c  106,  s.  137. 

(c)  Stat.  6  &  7  Vict.  c.  66. 

.{d)  Stat.  12  &  13  Vict.  c.  106,  s.  135. 


OF    DEBTS.  177 

ment  be  entered  up  against  a  person  by  reason  of  any  warrant  of 
attorney,  cognovit,  or  judge's  order,  no  execution  taken  out  on 
such  judgment  against  his  goods  can  avail  the  judgment  creditor, 
if  such  execution  be  not  completed,  by  sale  of  the  goods,  before 
the  creditor  has  notice  of  a  prior  act  of  bankruptcy  committed  by 
the  debtor,  and  before  a  petition  for  adjudication  of  bankruptcy 
issues  against  such  debtor,  (e)  If  the  execution  be  not  so  pre- 
viously completed  by  sale  of  thg  goods,  the  judgment  creditor 
has  no  other  remedy  than  to  come  in  for  his  dividend  ratably 
with  the  other  creditors.  But  a  judgment  obtained  by  default 
or  nihil  dicit  in  an  adverse  suit  was  not  formerly  within  this 
rule;  nor,  was  a  judgment  obtained  on  a  cognovit,  if  the 
action  were  commenced  *adversely  and  not  by  collusion. (/)  p^^qr^-i 
In  the  case  of  judgment  so  obtained,  therefore,  seizure  of  ^ 
the  debtor's  goods  under  an  execution,  if  made  before  the  creditor 
had  notice  of  his  having  committed  an  act  of  bankruptcy,  and 
before  the  issuing  of  the  fiat  in  bankruptcy,  was  valid  as  against 
the  other  creditors,  although  the  execution  might  not  have  been 
completed  by  sale  of  the  goods.(^)  But  under  the  Bankrupt 
Law  Consolidation  Act,  1849,  sale  as  well  as  seizure  is  necessary 
in  every  case.(A)  And  the  Bankruptcy  Act,  1861,  goes  still 
further,  and  provides(f)  that,  if  any  execution  shall  be  levied  by 
seizure  and  sale  of  any  of  the  goods  and  chattels  of  any  trader 
debtor,  upon  any  judgment  recovered  in  any  action  personalfor 
the  recovery  of  any  debt  or  money  demand  exceeding  fifty  pounds, 
every  such  debtor  shall  be  deemed  to  have  committed  an  act  of 
bankruptcy  from  the  date  of  the  seizure  of  such  goods  and 
chattels ;  provided  always,  that,  unless  in  the  meantime  a  petition 
for  adjudication  of  bankruptcy  against  the  debtor  be  presented, 
the  sherift'  or  other  oflicer  making  the  levy  shall  proceed  with  the 
execution,  and  shall  at  the  end  of  seven  days  after  the  sale  pay 
over  the  proceeds,  or  so  much  as  ought  to  be  paid,  to  the  execu- 
tion creditor,  who  shall  be  entitled  thereto  notwithstanding  such 

(e)   Stat.  12  &  13  Vict.  c.  106,  ss.  133,  184,  repealing  stat.  6  Geo.  IV,  c.  16,  s.  108.     Ed- 
wards V.  Scarsbrook,  3  Best  &  Smith,  280,  E.  C.  L.  R.  vol.  113. 

(/)   Stat.  1  Will.  IV,  c.  7,  s.  7 ;  see  Crossfield  v.  Stanley,  4  Barn.  &  Adol.  87,  B.  C.  L. 
R.  vol.  24 ;  S.  C.  1  Nev.  &  Man.  668  ;  Bell  v.  Bidgood,  8  C.  B.  763,  E.  C.  L.  R.  vol.  65. 

(g)  See  stat.  2  &  3  Vict.  c.  29. 

(A)   Stat.  12  &  13  Vict.  c.  106,  s.  184;  Button  v.  Cowper,  6  Ex.  Rep.  159. 

(t)  Stat.  24  &  25  Vict.  c.  134,  s.  73. 

12 


178  OF    CHOSES   IN    ACTION. 

act  of  bankruptcy,  unless  the  debtor  be  adjudged  a  bankrupt 
within  fourteen  days  from  the  day  of  the  sale,  in  which  case  the 
money  so  received  by  the  creditor  shall  be  paid  by  him  to  the 
assig-nee  under  the  bankruptcy;  but  the  sheriff  or  other  officer 
shall  not  incur  any  liability  by  reason  of  anything  done  by  him 
as  aforesaid ;  provided  also,  that,  in  case  of  bankruptcy,   the 

^  „^^  costs  and  expenses  of  such  action  and  execution  *sh^ll  be 

r  991 

'-       -"  retained  and  paid  out  of  ihe  proceeds  of  the  sale,  and  the 

balance  only,  after  such  payment,  be  paid  to  the  assignees. 

Every  judgment  debt  carries  interest  at  the  rate  of  4^.  per  cent, 
per  annum  from  the  time  of  entering  up  the  judgment  until  the 
same  shall  be  satisfied,  and  such  interest  may  be  levied  under  a 
writ  of  execution  on  such  judgment. (jy     On  the  death  of  the 

(j)  Stat.  1  &  2  Vict.  c.  110,  s.  17. 

1  Neither  debts   due   by  contract,   or   by  Crabb  v.   The  Nashville  Bank,   6    Yerg.  R. 

judgment,  would  bear  interest,  unless  it  were  3.32  ;  Grubb  v.   Brooke,  47  Pa.  St.  R.   485  ; 

so  provided  by  positive  legislation  ;  Hamer  Townsend  v.   Smith,   20  Texas   R.   465.    In 

et  al.   V.  Kirkwood  et  al.,  26   Missi    R.  95  ;  North  Carolina  it  has  been  decided,  that  in- 

Barnes   v.    Crandell,    12    La.    An.    R.    112;  terest  is  not  to  be  calculated  upon  a  judg- 

Thompson  v.  Monrow,  2  Cal.  R.  99  ;  but  it  ment,  but  on  the  principal  of  the  debt,  until 

is   believed,  that  in  all  of  the  States  except  the  time  of  payment ;  Satterwhite  r.  Carson, 

North  Carolina,  interest  has  been  made   an  3  Ired.  L   R.   549  ;  and,   where  judgment  is 

incident  to  judgments  ;  The  Commonwealth,  entered  for  the  penalty  of  a  bond,   interest 

for  the  use,  Ac,  V.  Vanderslice  etal.,  Admrs.,  can    only   be    calculated   upon    the    amount 

8  Serg.  &  Raw.  R.  452  ;  Ijams  et  al.  v.  Rice,  found    due  ;    Nice  et  al.  v.    Turrentine,    13 

use,    &c.,    17    Ala.    R.    404;    Thompson    v.  Ired.    L.    R.    212;  in  which    last   doctrine, 

Thompson,    5    Ark.    R.    18 ;    Mayor,   <tc.,  of  however,     North    Carolina    does    not    stand 

Macon  v.  The  Trustees  of  the  Bibb  County  alone  ;  Thomas  v.  Wilson,  3  McCord's  R.  166. 

Academy,    7   Geo.   R.   205;   Kintner  v.   The  The  rule,  that  interest  is  incident  to  judg- 

State,  3  Port.  (Ind.)  R.  93;   Chamberlain  w.  ments,  applies  even  in  those  cases  where  judg- 

Maitland  &  Co.,  5  B.  Mon.  R.  449  ;  Aubic  v.  ment  lias  been  rendered  for  a  cause  of  action 

Gill,   7  Rob.  R.   50  ;  Gwinn  v.    Whitaker,  1  which  does  not  bear  interest,  as  for  unliqui- 

Har.   &  Johns.  R.  764;  Williams,  Admr.,  v.  dated  damages;   Wright  v.  Abbott,   6   Ann. 

The  American  Bank  et  al.,  4  Metcf.  R.  317  ;  (La.)  R.    569  ;  Marshall  v.  Dudley,  4  J.   J. 

Hodgdon  v.  Hodgdon,  2  N.  H.  R.  169  ;  Ma-  Marsh.  R.  244  ;  Klockr.  Robinson,  22  Wend, 

hurin  v.  Bickford,  6  Id.  568  ;  Sayre  v.  Aus-  R.    167  ;  Lord  v.    The  Mayor,  Ac,   of  New 

tin,  3  Wend.   R.  496;  Graham   v.    Newton,  York,  3  Hill's  (N.   Y.)   R.  427;  Harrington 

12  0.  R.  210;  Fitzgerald  v.  Caldwell's  Exrs.,  v.  Glenn,  1  Hill's  (S.  C.)  R.  79. 

4  Dal.  R.  251  ;  The  Commonwealth  v.   Mil-  In   the  case   of  a  revival  of  a  judgment, 

ler's  Admrs.,  8  Serg.  &  Raw.  R.  452  ;   Mohn  the  original  judgment,  and  the  interest,  form 

V.  Hiester,  6  Wat.  R.  63  ;  Fishburne,  Exr.  of  a  new  principal,  upon  which  interest  is  to  be 

Snipes,  v.  Sanders,  1  Nott  &  McC.    R.  242  ;  subsequently   calculated ;    Verree   et   al.    v. 

Norwood  V.   Manning,  2  Id.  395  ;  Admr.  of  Hughes,  6  Halst.  R.  91 ;  Fries  v.  Watson,  5 

Pinckney   v.  Singleton,  2  Hill's   (S.  C.)    R.  Serg.   &  Raw.   R.    220;  Meason's  Estate,    5 

343  ;  GatewoodiJ.  Palmer,  10  Hump.  R.  469  ;  Wat.  R.  464;  Wilcher  v.  Hamilton,  15  Geo. 


OF   DEBTS. 


179 


debtor,  his  judgment  debts  must  be  paid  in  full  by  his  executors 
or  administrators  out  of  his  personal  estate  before  any  of  his 
debts  on  bond  or  by  simple  contract,(/t)^  but  it  is  now  provided 


(k)  Wentworth's  Executors,  265,  et  seg.,  14th  ed. 
c.  2,  s.  2  ;  Berrington  v.  Evans,  3  Y.  &  Col.  384. 


Williams  on  Executors,  pt.  iii,  bk.  2, 


R.  435  ;  this  doctrine  applies,  also,  to  a  judg- 
ment in  a  scire  facias  against  a  garnishee,  in 
foreign  attachment ;  Flanagin  v.  Wetherill, 
5  Whart.  R.  280  ;  though  interest  on  a  debt 
due  by  a  garnishee,  is  suspended  during  the 
pendency  of  the  proceedings,  if  there  be  no 
fraud,  collusion,  or  wilful  delay,  on  the  part 
of  the  garnishee  ;  Jackson's  Exr.  v.  Lloyd,  44 
Pa.  St.  R.  82.  It  has  been  held  in  Pennsyl- 
vania, that  where  a  judgment  is  afiBrmed  by 
the  Supreme  Court,  interest  is  not  to  be  cal- 
culated on  the  aggregate  of  the  judgment 
and  interest  then  due  ;  but  that  the  original 
judgment  is  the  sum  on  which  interest  is  to 
be  charged  ;  Keisey  v.  Murphy,  30  Pa.  St. 
R.  340,  doubting  McCausland's  Admrs.  v. 
Bell,  9  Serg.  &  Raw.  R.  388  ;  and  in  the 
same  State,  interest  cannot  be  included  with 
the  principal  of  a  verdict,  for  the  time  inter- 
vening between  the  verdict  and  the  judg- 
ment ;  Irwin  v.  Hazleton,  37  Pa.  St.  R.  465  ; 
interest  as  well  as  principal  can  be  collected 
on  execution  ;  Ijams  et  al.  v.  Rice,  use,  &o., 
17  Ala.  R.  404 ;  Berryhill  v.  Wells,  5  Bin. 
R.  56  ;  Admrs.  of  Kirk  v.  The  Exrs.  of  Rich- 
bourg,  2  Hill's  (S.  C.)  R.  352;  Martin  v. 
Kilbourne,  11  Vt.  R.  93  ;  Taylor  v.  Robin- 
son, 2  Allen's  (Mass.)  R.  662  ;  but  in  the 
State  of  Tennessee,  in  a  scire  facias  on  a 
judgment,  no  interest  can  be  recovered  ;  Al- 
len V.  Adams  et  al.,  15  Hump.  R.  16  ;  Hall 
V.  Hall,  8  Id.  156. 

In  some  of  the  States,  it  has  been  made 
lawful,  for  the  parties  to  a  contract,  to  stipu- 
late for  a  greater  rate  of  interest  than  that 
fixed  by  statute  ;  yet,  upon  the  judgment, 
only  the  statutory  rate  of  interest  shall  be 
allowed  ;  Borry  v.  Makepeace,  3  Port.  (Ind.) 
R.  154  ;  Burkhart  v.  Sappington,  1  Iowa  R. 
66  ;  Hawkins  et  al.  v.  Ridenhour,  13  Mo. 
R.  125  ;  but  see  to  the  contrary,  Hamer  etal. 
V.  Kirkwood  et  al.,  29  Missi.  R.  95  ;  Byrd  v. 
Gasquet,  1  Hemp.  R.  261;  in  other  States, 
where  the  parties  have  contracted  for  a  rate 
of  interest,  that  rate  of  interest  shall  be  con- 


tinued after  judgment,  not  upon  the  judg- 
ment, but  upon  the  principal  of  the  debt  or 
claim  ;  Tindale  v.  Meeker,  1  Scam.  R.  137  ; 
Aubic  V.  Gill,  7  Rob.  R.  50. 

In  Alabama,  in  an  action  of  debt  upon  a 
judgment  obtained  in  a  sister  State,  and 
judgment  had  by  nil  elicit,  &c.,  interest  can- 
not be  calculated  upon  the  original  judg- 
ment, at  the  rate  allowed  by  law  in  the  State 
where  it  was  obtained,  unless  a  jury  shall  first 
find  what  that  rate  of  interest  is  ;  Clarke  v. 
Pratt,  20  Ala.  R.  470  ;  Mobile  &  Cedar  Point 
R.  R.  Co.  V.  Talman  etal.,  15  Id.  472  ;  Har- 
rison et  al.  V.  Harrison,  20  Id.  629  ;  and  in 
Massachusetts,  interest  will  be  allowed  only 
on  the  rate  of  interest  of  that  State  ;  Barrin- 
ger  V.  King,  5  Gray's  R.  9.  See  also  for  the 
same  principle,  Cavender  v.  Guild,  4  Cal.  R. 
250  ;  Ingram  v.  Drinkard,  14  Tex.  R.  351  ; 
Nelson  v.  Felder,  7  Rich.  Eq.  R.  395. 

By  No.  23  of  the  Revised  Rules  of  the  Su- 
preme Court  of  the  United  States  (21  How. 
R.)  it  is  provided,  that  "In  cases  where  a 
writ  of  error  is  prosecuted  to  the  Supreme 
Court,  and  the  judgment  of  the  inferior  court 
is  afiirmed,  the  interest  shall  be  calculated 
and  levied  from  the  date  of  the  judgment  be- 
low, until  the  same  is  paid,  at  the  same  rate 
that  siniilar  judgments  bear  interest,  in  the 
courts  of  the  State  where  such  judgment  is 
rendered,"  &c.  See  Perkins  v.  Fourniquet 
et  al.,  14  How.  (U.  S.)  R.  328;  but,  where  a 
judgment  of  the  Circuit  Court  in  an  admi- 
ralty case,  was  afiirmed,  by  operation  of  law,  in 
the  Supreme  Court,  the  court  being  equally 
divided,  interest  was  not  allowed  on  the  judg- 
ment ;  Ilemmenway  v.  Fisher,  20  How.  R. 
255. 

'  The  order  in  which  the  debts  of  a  dece- 
dent are  to  be  paid,  is  regulated  by  the  stat- 
ute law  of  the  several  States,  and  in  many  of 
them,  judgments  have  no  precedence  over 
debts  due  by  specialty,  or  simple  contract ; 
but  in  the  absence  of  any  enactment  on  the 
subject,  judgments  have  a  legal  priority,  ac- 


180 


OF   CHOSES   IN   ACTION. 


that,  in  order  to  secure  tins  preference,  the  judgment  must  be 
registered  or  re-registered  within  five  years  before  the  death  of 
the  testator  or  intestate,  in  the  same  manner  as  is  required  in 


cording  to  the  rules  of  the  common  law  ; 
Nimmo's  Exr.  v.  The  Commonwealth,  4  Hen. 
&  Munf.  R.  57  ;  and  the  decree  of  a  court  of 
equity  is  equivalent  to  the  judgment  of  a 
court  of  law  ;  In  the  matter  of  the  Estate  of 
John  Sperry,  dec'd,  1  Ash.  R,  347  ;  Thomp- 
son V.  Brown,  4  Johns.  Ch.  R.  619  ;  and,  if 
there  be  not  assets  sufficient  to  pay  all  the 
debts  of  the  deceased,  it  is  the  duty  of  the 
executor  or  administrator  to  apply  them  rat- 
ably to  the  payment  of  all  the  debts,  except 
such  as  operate  as  liens,  and  are  entitled  to  a 
preference  ;  Gay  v.  Lemele,  32  Missi.  R.  309. 
On  the  subject  of  the  payment  of  the  debts 
of  a  decedent,  see  Robertson  v.  Demoss, 
Admx.,  23  Missi.  R.  300  ;  Bason,  Admx.,  v. 
Hughart,  2  Tex.  R.  476  ;  Place,  Ac,  v.  Old- 
ham's Admr.,  10  B.  Mon.  R.  400  ;  Smith  et 
al.  V.  The  State  of  Maryland,  5  Gill's  R. 
45  ;  The  State  of  Maryland  v.  The  Bank 
of  Maryland,  6  Gill.  &  Johns.  R.  207  ;  Thom- 
as V.  McElwee,  3  Strobh.  L.  R.  131  ;  Wil- 
liams, Admr.,  v.  John  W.  &  Wm.  Benedict, 
trading,  Ac,  8  How.  (U.  S.)  R.  107  ;  Green- 
ough's  Ap.,  9  Pa.  St.  R.  18  ;  The  State,  on  the 
relation,  &c.,  v.  Johnson  et  al.,  7  Ired.  L.  R. 
231  J  Malis  &  Co.  v.  Admrs.  of  Jones,  2 
Richard.  L.  R.  393  ;  Deichman's  Ap.,  2  Whart. 
R.  395  ;  United  States  v.  Duncan,  4  McLean's 
R.  607  ;  The  Commonwealth,  for  the  use,  &c., 
V.  Lewis,  6  Bin.  R.  266  ;  Martin's  Ap.,  33  Pa. 
St.  R.  395  i  Smith  v.  Mallory,  24  Ala.  R. 
628  ;  Kittera's  Est.,  17  Pa.  St.  R.  416  ;  Ma- 
hone  V.  Central  Bk.,  17  Geo.  R.  111. 

The  position,  that  the  personalty  of  a  de- 
cedent, is  to  be  first  applied  to  the  payment 
of  his  debts,  is  well  established.  In  Penn- 
sylvania, it  has  been  decided  by  the  case  of 
Hoover  v.  Hoover,  5  Pa.  St.  R.  351,  that 
the  assets  shall  be  applied  in  the  following 
order,  to  the  payment  of  the  debts:  1.  The 
general  personal  estate,  not  expressly,  or  by 
implication,  exempted  ;  2.  Lands  expressly 
devised  to  pay  debts  ;  3.  Estates  descended  to 
the  heir  ;  4.  Devised  lands,  charged  with  the 
payment  of  debts  generally,  whether  devised 
interms  general  or  specific   (every  devise  of 


land  being  in  its  nature  specific)  ;  5.  Gene- 
ral pecuniary  legacies,  })ro  rata;  6.  Specific 
legacies, />)-o  ;•«?(/ /  7.  Real  estate  devised  ;  whe- 
ther in  terms  general  or  specific.  But  see 
Hallowell's  Est.,  23  Pa.  St.  R.  229  :  and  Loo- 
mis's  Ap.,  10  Id.  387.  In  New  York,  by  Liv- 
ingston V.  Newkirk,  3  Johns.  Ch.  R.  312,  the 
order  of  application  was  established,  as,  1. 
The  general  personal  estate  ;  2.  Estates  de- 
vised expressly  for  the  payment  of  debts,  aiirl 
for  that  purpose  only  ;  3.  Estates  descend- 
ed. 4.  Estates  specifically  devised,  though 
charged  generally  with  the  payment  of  debts. 
Which  last  has  also  been  decided  to  be  the  or- 
der of  application  in  Kentucky,  by  McCamp. 
bell  V.  McCampbell,  6  Litt.  R.  95,  viz.  :  1. 
The  general  personal  estate  ;  2.  The  estate  es- 
pecially and  expressly  devised  to  be  sold  ;  3. 
The  estate  descended ;  4.  The  estate  specifi- 
cally devised,  though  charged  generally  with 
the  payment  of  debts.  In  Massachusetts,  by 
the  case  of  Hays  v.  Jackson,  6  Mass.  R.  149, 
the  order  was  settled,  as  follows  •  ].  The  per- 
sonal estate,  excepting  specific  bequests,  or 
such  of  it  as  is  exempted  from  the  payment 
of  debts  ;  2.  The  real  estate,  appropriated  in 
the  will  as  a  fund  for  the  payment  of  debts  ; 
3.  The  descended  estate,  whether  the  testator 
was  seized  of  it  when  the  will  was  made,  or 
it  was  afterwards  acquired  ;  4.  The  rents  and 
profits  of  it,  received  by  the  heir  after  the  tes- 
tator's death  ;  5.  The  lands  specifically  de- 
vised, although  generally  charged  with  debts, 
yet  not  specially  appropriated  for  that  pur- 
pose. And  see,  Stuart  v.  Exr.  of  Carson,  1 
Desaus.  R.  500  ;  Hall  et  ux.  v.  Sayre,  10  B. 
Mon.  R.  46  ;  Wiliamsi;.  Price,  21  Geo.  R.  507. 
As  to  the  judgments  of  foreign  states,  and 
that  they  are  not  entitled  to  the  priority  due 
judgments  obtained  against  the  decedent,  in 
the  state  where  he  resided,  but,  on  the  con- 
trary, rank  with  simple  contract  debts,  see, 
Brengle  v.  McClellun,  7  Gill  &  Johns.  R.  434  ; 
Hubbell  V.  Coudry,  5  Johns.  R.  132  ;  Came- 
ron V.  Wurtz,  4  McC.  R.  278  ;  Gainey  v.  Sex- 
ton, 29  Mo.  R.  449  j  Brown  v.  Public  Admr., 
2  Bradf.  R.  103. 


OF   DEBTS.  181 

order  to  affect  lands  in  the  hands  of  purchasers  or  mortgagees.(?)' 
The  decree  of  a  court  of  equity  is  equivalent  to  the  judgment  of 
a  court  of  law.(m)  And  the  privilege  of  priority  of  payment 
extends  to  the  judgments  of  every  court  of  record,  wh'ether 
superior  or  inferior;  hut  the  judgment  of  a  foreign  court  is  en- 
titled to  no  precedence  over  a  simple  contract  debt.(w)  The 
remedies  of  the  creditor  by  judgment  of  any  of  the  superior 
courts,  against  the  real  estate  of  his  debtor,  are  mentioned  in  the 
author's  treatise  on  the  Principles  of  the  Law  of  Eeal  Property.(o) 
The  remedies  against  the  choses  in  possession  of  the  debtor  have 
been  referred  to  in  a  previous  part  of  the  present  work.(^)  The 
remedies  in  respect  of  the  choses  in  *action  of  the  debtor  |-^-|^/^^ 
will  be  hereafter  mentioned.  In  addition  to  these  rem- 
edies, such  a  judgment  creditor  may  imprison  the  person  oi  his 
debtor  by  means  of  the  writ  of  capias  ad  satisfaciendum ;[q)  but, 
should  he  do  so,  he  will  relinquish  all  right  and  title  to  the  benefit 
of  any  charge  or  security  which  he  may  have  obtained  by  virtue 
of  his  judgment. (r)  If,  however,  the  debt  should  not  exceed  20?., 
the  debtor  cannot  be  imprisoned(5)  without  a  previous  summons 
and  examination  before  a  commissioner  of  bankrupt  or  a  judge 
of  a  court  for  the  recovery  of  small  debts,  who  will  order  the 
commitment  of  the  debtor  only  in  case  of  fraud  or  other  ill 
behavior  ;(^)  and  the  imprisonment  will  not  then  operate  as  any 
satisfaction  of  the  debt.(;<)^ 

(/)  Stat.  23  &  24  Vict.  c.  38,  ss.  3,  4.  See  Re  Rigby,  M.  R.  12  W.  R.  32  ;  Principles  of 
the  Law  of  Real  Property,  p.  75,  et  seq.,  6th  ed. 

{m)  Shafto  v.  Powe,  3  Lev.  355. 

{n)  Duplex  v.  De  Proven,  2  Vern.  540.  See,  also,  Smith  v.  Nicolls,  5  Bing.  N.  C.  208, 
E.  C.  L.  R.  vol.  35. 

(o)   P.  63,  et  seq.,  2d  ed. ;   66,  3d  &  4th  eds.  ;   71,  5th  ed.  ;   75,  6th  ed. 

(p)  Ante,  p.  48. 

(<7)   Bac.  Abr.  tit.  Execution  (C),  3. 

(r)  Bac.  Abr.  tit.  Execution  (D)  ;  stat.  1  &  2  Vict.  c.  110,  s.  16. 

(s)   Stat.^7  &  8  Vict.  c.  96,  s.  57. 

(t)  Stat.  8  &  9  Vict.  c.  127 ;  9  &  10  Vict.  c.  95,  s.  99. 

(M)   Stat.  8  A  9  Vict.  c.  127,  s..3 ;  9  &  10  Vict.  c.  95,  8.  103. 

1  The  lien  docket  is  not  the  record  of  judg-  tice  to  a  subsequent  incumbrance,  which  shall 
ments,  but  the  essential  index  of  them;  it  be  actual;  Smith's  Ap.,  47  Id.  140;  other- 
does  not  make  a  judgment,  but  refers  to  one  wise,  it  will  not  be  effectual  as  a  judgment,  as 
supposed  to  be  already  made  ;  Ferguson  v.  against  subsequent  lien  creditors,  whose  liens 
Staver,  40  Pa.  St.  R.  216;  but  the  law  re-  are  regularly  docketed ;  Snyder  County  Ap., 
quires  judgments  to  be  properly  docketed  and  3  Grant's  Cos.  40. 

indexed,  or  in  default  of  this,  which  amounts        ^  In  many  of  the  States  of  the  Union,  im- 

only  to  constructive  notice,  to  bring  home  no-  prisonment  for  debt  has  been  abolished  by 


182  OF   CUOSES   IN    ACTION. 

Judgments  of  the  inferior  courts  may  be  removed  into  the 
superior  courts  by  order  of  any  judge  of  the  latter  courts;  and 
immediately  on  such  removal  the  judgment  has  the  same  force, 
charge  and  eifect  as  a  judgment  of  the  superior  court;'  but  it 
cannot  aft'ect  any  lands,  tenements,  or  hereditaments,  as  to  pur- 
chasers, mortgagees,  or  creditors,  unless  registered  in  the  same 
manner  as  judgments  of  the  superior  courts.(v)  A  registry  is 
now  provided  for  judgments  in  the  county  courts  for  the  sum  of 
10/.  and  upwards,  (.t) 

In  addition  to  judgment  debts,  other  debts  of  record  are  recog- 
nizances when  duly  enrolled,(^)  and  statutes  merchant,  statutes 
staple,  and  recognizances  in  the  nature  *of  statutes  staple. 
'-  -'  The  three  last  are  now  quite  obsolete.  A  recognizance  is 
an  obligation  entered  into  before  some  court  of  record  or  magis- 
trate duly  authorized,  with  condition  to  do  some  particular  act, 
as  to  appear  at  the  assizes,  to  keep  the  peace,  or  to  pay  a  debt,(2) 
It  is  payable  out  of  the  personal  estate  of  the  debtor,  in  the  event 
of  his  decease,  next  after  judgment  debts.(a)'' 

[v)  Stat.  14  2  Vict,  e    110,  s.  22;  18  &  19  Vict.  c.  15,  s.  7.     See  Principles  of  the  Law 
of  Real  Property,  74,  5th  ed.  ;  78,  6th  ed. 
{x)  Stat.  15  &  16  Vict.  c.  54,  s.  18. 
(y)   Glynn  v.  Thorpe,  1  Barn.  &  Aid.  153. 
(z)  2  Bla.  Com.  341. 
[a)  Williams  on  Executors,  pt.  iii,  bk.  2,  c.  2,  s.  2. 

acts  of  legislation.  Suits  for  fines  and  pen-  Orphans'  Court,  the  court  held,  that  the 
alties  are  excepted  from  the  efifect  of  these  judgment  was  not  a  lien  on  the  lands  of  the 
.  statutes,  nor  do  they  embrace  actions  for  intestate,  and  that  it  had  no  priority  of  pay- 
trespass  or  torts  ;  and,  arrest  is  usually  per-  ment  out  of  the  proceeds  of  the  sale,  over 
mitted,  where  the  debt  has  been  fraudulently  either  "  phj'sic,  funeral  expenses,  servants' 
contracted,  or  where  the  debtors  fraudulently  wages,"  Ac.  ;  In  the  matter  of  the  Estate  of 
conceal,  or  dispose  of,   their  effects.  Wm.  Patterson,  dec'd,  1  Ash.  R.  336. 

1  See  Dickinson  v.  Smith,  25  Barb,  R.  102.  ^  la  New  Jersey  and  Tennessee,  a  recogni- 
In  Pennsylvania,  although  judgments  ob-  zance  creates  a  lien  on  the  lands  of  the  re- 
tained before  a  justice  of  the  peace,  when  cognizor,  from  the  time  of  its  acknowledg- 
filed  in  the  Common  Pleas,  or  made  known  to  ment;  State  v.  Stout,  6  Halst.  K.  362  ;  State 
the  administrators,  must  be  paid  pro  rata  v.  Winn,  3  Sneed's  R.  393  ;  but,  generally,  a 
with  judgments  in  a  court  of  record  ;  Scott,  recognizance  does  not  operate  as  a  lien  on 
Admr.,  v.  Ramsay,  1  Bin.  R.  221  ;  yet,  where  the  lands  of  the  recognizors,  until  judgment 
a  judgment  was  obtained  before  a  justice  of  on  the  recognizance  ;  State  v.  Morgan,  2  Bai- 
the  peace,  against  the  defendant,  and,  after  ley's  R.  601  ;  Dewiti;.  Osborn,  5  Harr.  R.  480  ; 
his  death,  a  transcript  of  the  judgment  was  People  v.  Lott,  21  Barb.  R.  130  ;  Gilmer  v. 
filed  in  the  oflBce  of  the  Prothonotary  of  the  Blackwell,  Dudley's  R.  6  ;  Pinckard  v.  The 
Court  of  Common  Pleas,  and  subsequently  People,  1  Scam.  R.  187  ;  Graham  v.  State,  7 
the  real  estate  of  the  defendant  was  sold  by  Blackf.  R.  313  ;  Allen  v.  Reesor,  16  Serg.  k 
his   administrators,   under  an   order   of  the    Raw.  R.  11. 


OF   DEBTS.  183 

Next  in  importance  to  debts  of  record  are  specialty  debts,  or  debts 
secured  by  special  contract  contained  in  a  deed.(b)  These  are  of  two 
kinds,  debts  by  specialty  in  which  the  heirs  of  the  debtors  are 
bound,  and  debts  by  specialty  in  which  the  heirs  are  not  bound. 
On  the  decease  of  the  debtor,  both  these  classes  of  specialty  debts 
stand  on  a  level  so  far  as  regards  their  payment  out  of  the  personal 
estate  of  the  debtor.  They  rank  next  after  debts  of  record,  and 
take  precedence  of  all  debts  by  simple  contract,(c)  with  the  ex- 
ception of  money  owing  for  arrears  of  rent,  to  which  the  feudal 
principles  of  our  law  have  given  an  importance  equal  to  that  of 
debts  secured  by  deed.(c/)  Debts  by  specialty  in  which  the  heirs 
are  bound  have,  however,  a  precedence  over  those  in  which  the 
heirs  are  not  bound,  in  case  the  real  estate  of  the  debtor  should 
be  resorted  to  on  his  decease  ;(e)  unless  he  should  have  charged 
his  real  estates  by  his  will  with  the  payment  of  his  debts,  in  which 
case  all  the  creditors  of  every  kind  will  be  paid  out  of  the  produce 
of  such  real  estates,  without  any  preference. (/)  For  the  sake  of 
the  advantage  which  may  thus  be  gained  on  the  decease  of  the 
debtor,  his  heirs  are  usually  bound  *in  every  specialty  debt. 
The  deed  creating  the  debt  may  be  either  a  deed  of  cove-  *-  -• 
nant  or  a  bond.  A  covenant  runs  thus  :  "And  the  said  (debtor) 
doth  hereby  for  himself,  his  heirs,  executors,  and  administrators, 
covenant  with  the  said  [creditor),  his  executors  and  administrators," 
to  pay,  &c.  A  bond  is  in  the  following  form  :  "Know  all  men  by 
these  presents,  that  I  (debtor),  of  [such  a  place),  am  held  and  firmly 
bound  to  [creditor),  of  [such  a  place),  in  the  penal  sum  of  lOOOL  of 
lawful  money  of  Great  Britain,  to  be  paid  to  the  said  [creditor),  or 
to  his  certain  attorney,  executors,  administrators,  or  assigns,  for 
which  payment  to  be  well  and  truly  made  I  bind  myself,  my  heirs, 
executors,  and  administrators,  and  every  of  them,  firmly  by  tbese 
presents.  Sealed  with  my  seal.  Dated  this  1st  day  of  January, 
1848."  In  both  of  the  above  cases  it  will  be  observed  that  the 
executors  and  administrators  are  bound  as  well  as  the  heirs.    This, 

(i)   2  Bla.  Com.  4fi5.     See  ante,  p.  68. 

(c)  Pinchon's  Case,  5 'Rep.  88  b. 

(d)  Wentworth's  Executors,  284,  14th  edit.  ;  Claugh  v.  French,  2  Coll.  277. 

(e)  See  Principles  of  the  Law  of  Real  Property,  BO,  2d  ed.  ;  63,  3d  &  4th  eds.  ;  68,  bth 
ed. ;  72,  6th  ed.     Richardson  v.  Jenkins,  1  Drew.  477,  483, 

if)  2  Jarm.  Wills,  510,  496,  2d  ed. 


184  OF   CHOSES   IN   ACTION. 

however,  is  not  absolutely  necessary,  and  the  covenant  or  bond 
would  be  equally  eitectual  if  the  heirs  only  were  named  in  it.(^) 

A  bond  in  the  form  above  mentioned,  without  any  addition  to  it, 
is  called  a  single  bond.  Bonds,  however,  have  usually  a  condition 
annexed  to  them,  that,  on  the  person  bound  (called  the  obligor) 
doing  some  specified  act  (as  paying  money  when  the  bond  is  to 
secure  the  payment  of  money),  the  bond  shall  be  void.  The  con- 
dition of  an  ordinary  money-bond  is  as  follows  :  "  The  condition 
of  the  above-written  bond  or  obligation  is  such,  that  if  the  above- 
bounden  [debtor),  his  heirs,  executors,  or  administrators,  should  pay 
unto  the  said  {creditor),  his  executors,  administrators,  or  assigns,  the 
full  sum  of  500^.  [usually  half  the  amount  named  in  the  penalty)  of 
lawful  money  of  Great  Britain,  with  interest  for  the  same  after 

the  rate  of  5L  per  cent,  per  annum,  upon  the day  of now 

r*inQn  ^^"^^  ensuing,  without  *any  deduction  or  abatement  what- 
*-  -*  soever,  then  the  above-written  bond  or  obligation  shall  be 
void,  otherwise  the  same  shall  remain  in  full  force."  Bonds  with 
conditions  of  this  kind  have  been  long  in  use.  In  former  times, 
when  the  condition  was  forfeited  the  whole  penalty  was  recover- 
able. (A)  Equity  subsequently  interfered,  and  prevented  the  creditor 
from  enforcing  more  than  the  amount  of  the  damage  which  he  had 
actually  sustained.  The  courts  of  law  at  length  began  to  follow 
the  example  of  the  courts  of  equity ;  and  according  to  a  course  of 
proceeding,  of  which  there  are  many  examples  in  the  history  of 
our  law,  the  legislature  more  tardily  adopted  the  rules  which  had 
already  been  acted  on  in  the  courts ;  and  by  a  statute  of  the  reign 
of  Queen  Anne  it  was  provided,  that,  in  case  of  a  bond  with  a 
condition  to  be  void  upon  payment  of  a  lesser  sum,  at  a  day  or 
place  certain,  the  payment  of  the  lesser  sum  with  the  interest  and 
costs  shall  be  taken  in  full  satisfaction  of  the  bond,  though  such 
payment  be  not  strictly  in  accordance  with  the  condition. («)  But 
if  the  arrears  of  interest  should  accumulate  to  such  an  amount  as, 
together  with  the  principal,  to  exceed  the  penalty  of  the  bond,  the 
creditor  can  claim  no  more  than  the  penalty  either  at  law(/:)  or  iu 

(g)  Co.  Litt.  209  a ;  Barber  v.  Fox,  2  Wms.  Saund.  136. 

(A)  Litt.  s.  340. 

(f)  Stat.  4  &  5  Anne,  c.  16,  ss.  12,  13.  See  3  Bur.  1373  ;  2  Bla.  Com.  341  ;  Smith  v. 
Bond,  10  Bing.  125,  E.  C.  L.  R.  vol.  25  ;  S.  C.  3  Moo.  &  Scott,  528  ;  James  v.  Thomas,  5 
Barn.  &  Adol.  40,  E.  C.  L.  R.  vol.  27. 

(yt)  Wild  V.  Clarkson,  6  T.  R.  303. 


OF   DEBTS.  185 

equity. (?)  If,  however,  there  be  special  circumstances  in  the  credi- 
tor's favor,  as  if  he  have  a  mortgage  also  for  the  principal  and 
interest,(wi)  or  if  the  debtor  has  been  delaying  him  by  vexatious 
proceeding8,(?i)  equity  will  then  aid  him  to  the  full  extent  of  his 
demand,  (o) 

*Bonds  are  frequently  givenfnot  only  for  securing  the  p^-,/^.-■ 
payment  of  money  on  a  given  day,  but  also  with  conditions  '-  -' 
to  be  void  on  the  performance  of  many  other  acts  agreed  to  be  done, 
or  on  the  pa^Tiient  of  money  by  instalments.  In  such  cases  the 
law  formerly  was,  that  on  the  breach  of  any  part  of  the  condition, 
the  whole  penalty  became  due ;  and  judgment  and  execution  might 
be  had  thereon,  subject  only  to  the  control  of  a  court  of  equity  on 
application  to  it  for  relief  But  now  in  such  cases  the  obligee  (or 
person  to  whom  the  bond  is  made)  must,  in  bringing  his  action, 
state  or  assign  the  breaches  which  have  been  made  by  the  ob- 
ligor ;(p)  and  although  judgment  is  still  recovered  for  the  whole 
penalty,  execution  of  such  judgment  is  allowed  to  issue  only  for 
the  damages  in  respect  of  the  breaches  actually  committed ;  and 

(/)  Clarke  v.  Seton,  6  Ves.  411  ;  Hughes  v.  Wynne,  1  My.  &  Keen,  20. 
(»i)  Clarke  v.  Lord  Abingdon,  17  Ves.  106. 
(n)   Grant  v.  Grant,  3  Sim.  4.30. 

(o)  6  Ves.  416.  By  the  Stamp  Act,  13  &  14  Vict.  c.  97,  bonds  and  covenants  for  the  pay- 
ment of  any  definite  and  certain  sum  of  money  are,  with  some  exceptions,  charged  with  an 
ad  Valorem  duty  of  one-eighth  per  cent.,  or  half  a  crown  per  hundred  pounds  on  the  money 
secured,  according  to  the  following  table,  contained  in  the  act : 

«     d 

Not  exceeding  £50 13 

Exceeding  £50  and  not  exceeding  £100, 2     6 

100  "  150, 3     9 

"  150  "  200, 5     0 

"  200  "  250 6     3 

250  "  300 7     6 

And  where  the  same  shall  exceed  £300,  then  for  every  £100, 

and  also  for  any  fractional  part  of  £100, 2     61 

It  may  be  remarked,  that  for  sums  not  exceeding  £150,  the  duty  is  less  than  on  a  bill  or 
note,  whilst  the  security  is  greater. 

(p)  See  the  judgment  of  Parke,  B.,  in  Grey  v.  Friar,  15  Q.  B.  891,  910,  E.  C.  L.  R.  vol. 
69 ;  Wheelhouse  v.  Ladbrooke,  3  H.  AN.  291. 


'  By  the  "  Internal  Revenue  Law,"  being  ing  one  hundred  dollar."?,  and  not  exceeding 

the   act  of  Congress   of  March  3,    1865,  it  is  five  hundred  dollars,  shnll  be  fifty  cents,  and 

provided,  that  the  stamp  duty  on  any  personal  fifty  cents  for  every   additional  sum  of  five 

bond,  given  as  security  for  the  payment  of  hundred  dollars,  or  fractional  part  thereof, 
any  definite  or  certain  sum  of  money  exceed- 


186  OF    CHOSES   IN    ACTION. 

the  judgment  remains  as  a  further  security  for  the  damages  to  be 
sustained  by  any  future  breach, (r/) 

The  last  and  most  numerous,  though  least  important,  class 
P^  *of  debts  in  the  eye  of  the  law  are  debts  by  simple  con- 
'-  -"  tract,  which  are  all  debts  not  secured  by  the  evidence 
of  a  court  of  record,  or  by  deed  m  specialty.  On  the  decease  of 
the  debtor,  these  debts  are  payable  out  of  his  personal  estate,  by 
his  executor  or  administrator,  subsequently  to  all  debts  of  record 
or  by  specialty,  except  voluntary  bonds,  which  are  payable  after  all 
simple  contract  debts,  but  before  any  of  the  legacies. (r)^  Debts 
secured  by  bills  of  exchange  and  promissory  notes  have  no  prefer- 
ence over  the  other  simple  contract  debts  of  the  deceased,  (s) 

Thus  it  will  be  seen  that  there  are  now,  according  to  the  law 
of  England,  five  principal  kinds  of  debts,  namely,  crown  debts, 
judgment  debts,  specialty  debts  in  which  the  heirs  are  bound, 
specialty  debts  in  which  the  heirs  are  not  bound,  and  simple  con- 
tract debts.  Each  of  these  classes  has  a  law  of  its  own,  and 
remedies  of  varying  degrees  of  efficacy.  According  to  natural 
justice  one  would  suppose  that  all  creditors  for  valuable  consider- 
ation should  have  an  equal  right  to  be  paid ;  or  if  any  difference 
were  allowed,  that  those  who  could  least  aftbrd  to  lose  should  be 
preferred  to  the  others.  Our  law,  however,  takes  precisely  the 
opposite  course,  and,  for  reasons  which  certainly  illustrate  the 
history  of  England,  gives  to  the  crown,  representing  the  public 
in  the  aggregate,  who  can  best  afford  to  lose,  a  decided  preference 
over  private  creditors,  whose  loss  may  be  their  ruin.^  Again,  a 
debt  admitted  without  dispute  gives  the  creditor  far  less  advantage 
than  a  debt  which  has  been  contested  and  decreed  to  be  paid  by 
the  judgment  of  a  court  of  record.^     The  proper  function  of  a 

(g)  Stat.  8  &  9  Will.  Ill,  c.  11,  s.  8  ;  Hardy  v.  Bern,  5  T.  R.  636;  Willoughby  v.  Swin- 
ton,  6  East,  550  ;  1  Wms.  Saund.  57,  n.  (1)  ;  Hurst  v.  Jennings,  5  Bar.  &  Cress.  650,  E.  C. 
L.  R.  vol.  11  ;  S.  C.  8  Dow.  &  Ry.  424. 

(r)   Lomas  v.  Wright,  2  My.  &  Keen,  769 ;  Watson  v.  Parker,  6  Beav.  283. 

(s)  Yeoman  v.  Bradshaw,  3  Salk.  164. 

1  A  voluntary   bond,  in  law  as  well  as  at  Eq.  R.  57.     And  see  Candor  &  Henderson's 

equity,   is  good  between  the  parties,  but  in  Ap.,  27  Pa.   St.  R.  119;  Archer  v.  Hart,  5 

the  course  of  administration,  it  must  be  post-  Florida  R.  234. 
poned  to  any  just  debts,  though  due  by  sim-        ^  See  ante,  p.  92,  note, 
pie  contract ;  Stephens  v.  Harris  et  al.,  6  Ired.        '  See  post,  p.  116,  note. 


or  DEBTS.  187 

court  of  judicature  would  seem  to  be  the  settlement  of  disputes. 

In  our  law,  however,  *the  iudo-ment  of  the  court  is  per-  ^  _ 

r  106T 
mitted  to  be  made  use  of  not  only  to  settle  contested  ^         -• 

claims,  but  also  as  a  better  security  for  money  admitted  to  be  due. 
The  reason  of  this  perversion 'of  the  proper  end  of  a  judgment 
has  been  the  superior  advantages  possessed  by  a  creditor  having 
a  judgment  in  his  favor.  So  long,  however,  as  the  court  ex- 
ercises its  legitimate  function  of  deciding  on  contested  claims, 
there  seems  to  be  no  reason  why  a  debt  established  by  the 
decision  of  the  court  should  have  any  preference  over  one  which 
has  never  been  disputed.  If  this  w^ere  the  case,  the  use  of  judg- 
ments as  mere  securities,  by  collusion  or  agreement  of  the  parties, 
would  at  once  fall  to  the  ground,  and  an  end  would  be  put  to  a 
very  fruitful  source  of  litigation  and  fraud.  Practically  there  are 
but  two  reasons  why  payment  of  a  debt  is  withheld,  namely, 
either  because  the  debtor,  though  able  to  pay,  doubts  his  liability, 
or  because  he  is  unable  to  pay,  thou^i  he  knows  he  is  liable.  In 
the  first  case  an  action  at  law  decides  the  question;  but  the  judg- 
ment given  by  the  court  in  exercise  of  its  proper  function  is 
scarcely  ever  followed  by  the  taking  out  of  execution.  The  debt 
being  established,  the  debtor  pays  it,  and  the  judgment  is  immedi- 
ately satisfied.  The  creditor  has  the  advantage  of  the  decision  of 
the  court,  but  he  has  no  occasion  for  any  of  those  extraordinary 
remedies  to  which  his  position  as  a  judgment  creditor  entitles  him. 
K,  however,  the  debtor  is  unable  to  pay,  judgment  is  obtained 
merely  for  the  sake  of  its  fruit.  The  creditor  endeavors,  by 
suing  out  an  execution,  to  obtain  an  advantage  over  other  credi- 
tors, who  may  not  have  put  themselves  and  the  debtor  to  the 
same  trouble  and  expense.  But  inability  to  pay  one  debt  is  pre- 
sumptive evidence  of  inability  to  pay  others;  and  when  a  man  is 
unable  to  pay  all  his  creditors  in  full,  it  is  time  that  a  distribution 
should  be  made  of  his  property  amongst  his  creditors  ratably. 
The  extraordinary  privileges  conferred  on  a  judgment  creditor 
seem,  therefore,  in  most  cases,  practically  to  end  in  an  undue 
*preference  of  a  pressing  creditor  over  others  who  have  p^-,^,-, 
as  good  a  right  to  be  paid.  With  respect  to  the  three  last  •-  -' 
classes  of  debts,  namely,  debts  by  specialty  in  which  the  heirs  are 
bound,  those  in  which  the  heirs  are  not  bound,  and  simple  con- 
tract debts,  the  distinctions  between  them  serve  principally  to 


188  OF   CHOSES   IN   ACTION. 

mark  the  steps  of  tlie  struggle  by  whieli  the  rights  of  creditors 
have  at  length  been  obtained.  The  trophies  of  a  victory  so  hardly 
won  can  scarcely  be  expected  to  present  a  very  orderly  appearance. 
The  rights  of  these  creditors  accordingly  vary  with  the  accident 
of  the  death  of  the  debtor,  with  the  proportion  which  his  real 
estate  may  bear  to  his  personalty,  and  with  the  circumstance  of 
his  having  or  not  having  charged  his  real  estate  by  his  will  with 
the  payment  of  his  debts;  although,  as  we  shall  see,  he  can  bring 
them  all  to  a  level  by  becoming  a  bankrupt  if  he  please.  Surely 
it  is  time  that  the  law  of  debtor  and  creditor  were  placed  upon 
some  more  simple  and  reasonable  footing. 

Since  these  remarks  were  written,  an  approach  has  been  made 
towards  the  practical  application  of  the  principles  above  insisted 
on,  by  the  Bankruptcy  Act,  1861, (^)  which  provides,  as  we  have 
seen,  that  the  seizure  and  sale  of  the  goods  of  a  trader  debtor,  on 
an  execution  for  a  sum  exceeding  fifty  pounds,  shall  be  an  act  of 
bankruptcy.  The  author  ventures  to  express  his  gratification  at 
this  improvement  in  the  law,  and  his  hope  that  still  further  prog- 
ress may  yet  be  made  in  the  same  direction. 

The  next  subject  which  claims  our  attention  is  that  of  interest 
upon  debts.  The  absurd  prejudice  which  anciently  caused  in- 
terest, under  the  name  of  usury,  to  be  considered  unlawful, 
retained  some  hold  upon  our  law  long  after  the  *taldng  of 
'-  -^  interest  was  rendered  lawful  by  act  of  Parliament.(?<)  In 
ordinary  cases  a  debtor  was  allowed  to  withhold  payment  of  his 
debt,  without  being  obliged  to  give  to  his  creditor  the  poor 
recompense  of  interest  on  the  money  he  was  making  use  of  for 
his  own  benefit.  For  until  recently  it  was  a  general  rule  of  law, 
that  interest  was  not  payable  on  any  debts,  whether  by  specialty 
or  simple  contract,  unless  expressly  agreed  on,  or  unless  a  promise 
could  be  implied  from  the  usage  of  trade  or  other  circumstances, 
or  unless  the  debt  were  secured  by  a  bill  of  exchange  or  promis- 
sory note,  which,  being  mercantile  securities,  always  carried  in- 
tere8t.(y)     But  in  equity  interest  was  more  frequently  a\lowedi.{w) 

(0   Stat.  24  &  25  Vict.  c.  134,  s.  73,  ante,  p.  98. 

{71)   Stat.  37  Hen.  VIII,  c.  9.     See  ajtte,  p.  5. 

(v)  Higgins  v.  Sargent,  2  Barn.  &  Cress.  348,  E.  C.  L.  R.  vol.  9  ;  S.  C.  3  Dow.  &  Ry. 
613  ;  Foster  v.  Weston,  6  Ring.  709,  E.  C.  L.  R.  vol.  19  ;  Page  v.  Newman,  9  Barn.  & 
Cress.  378,  E.  C.  L.  R.  vol.  17. 

{w)  See  Lowndes  v.  Collins,  17  Ves.  27  ;  2  Fonb.  Eq.  429  ;  C.  P.  Cooper,  246,  et  seg. 


OF   DEBTS. 


189 


And  now,  by  an  act  of  King  William  the  Fourtli,(a;)  interest  is 
recoverable  on  all  debts  payable  by  virtue  of  any  written  instru- 
ment, at  a  certain  time,  from  the  time  when  such  debts  were 
payable,  or  if  payable  otherwise,  then  from  the  time  when 
demand  of  payment  shall  have  been  made  in  writing,  so  as  such 
demand  give  notice  to  the  debtor  that  interest  will  be  claimed 
from  the  date  of  such  demand  until  the  time  of  payment.' 

The  payment  of  a  debt  is  sometimes  secured  by  a  surely,  who 
makes  himself  liable,  together  with  the  principal  debtor,  for  the 
payment.^     If  the  surety  should  pay  the  debt,  he  will  become  the 

(x)  Stat.  3  4  4  Will.  IV,  c.  42,  ss.  28,  29  ;  Hyde  v.  Price,  8  Sim.  678. 


'  See  ante,  p.  89,  note  1  and  p.  98,  note  1. 

2  Although,  in  the  case  of  principal  and 
surety,  the  liability  of  the  latter  is  not  of  a 
primary  character,  yet  the  creditor  is  not 
bound  to  pursue  the  principal,  before  resort- 
ing to  the  surety ;  Abercrombie  v.  Knox,  3 
Ala.  R.  728 ;  but  in  Pennsylvania,  a  dis- 
tinction has  been  taken  between  surety  and 
guarantee  ;  where  the  latter  term  is  used, 
and  the  contract  is  of  that  nature,  the  cred- 
itor must  enforce  his  remedies  against 
the  principal  debtor,  before  he  resorts  to  the 
guarantor  ;  or,  he  must  show  that  the  affairs 
of  the  principal  debtor  were  in  such  condition, 
that  any  pursuit  of  him  would  have  been  ut- 
terly fruitless  j  Parker  v.  Culvertson,  1  Wall, 
Jr.  R.  149  ;  Margerger  et  al.  v.  Pott,  16  Pa. 
St.  R.  9  ;  Stroehecker  v.  The  Farmer's  Bank, 
6  Pa.  St.  R.  44 ;  Johnson  v.  Chapman,  3  Pa. 
R.  18  ;  Rudy  v.  Wolfe  et  al.,  Admrs.,  16  Serg. 
&  Raw.  R.  79 ;  Koch  v.  Melhorn,  25  Pa.  St. 
R.  89  ;  Campbell  v.  Baker,  46  Pa.  St.  R.  245  ; 
Gilbert  v.  Henck,  32  Id.  205  ;  and  see  also, 
Mackie's  Exr.  v.  Davis,  <tc.,  2  Washing.  R. 
229  ;  Berksdale  v.  Fenwick,  2  Hen.  &  Munf. 
R.  113.  n.  ;  Crumpston  v.  McNair,  1  Wend. 
R.  457;  but  the  term  "guaranty,"  will  not 
make  the  contract  of  that  character,  when  it 
is  in  the  nature  of  a  contract  of  surety  ;  Sher- 
man V.  Roberts,  1  Grant's  Gas.  261  ;  Camp- 
bell V.  Baker,  46  Pa.  St.  R.  245  ;  and  since  the 
act  of  Assembly  of  29th  of  April,  1855,  a 
parol  contract  of  guaranty  will  not  be  en- 
forced ;  Jack  V.  Morrison,  48  Pa.  St.  R.  113. 
If  the  surety  pays  the  debt,  he  has  a  right  to 
call  upon  the  principal  for  indemnification  ; 


Williams  v.  Williams,  5  0.  R.  444  ;  Odlin  v. 
Greenleaf,  3  N.  H.  R.  270  ;  Gibbs  v.  Bryant, 
1  Pick,  R.  118  i  Peters  v.  Barnhill,  1  Hill's 
(S.  C.)  R.  234  ;  Hunt  v.  Amidon,  4  Hill's  R. 
345  ;  Wesley  Church  v.  Moore  et  al.,  10  Pa. 
St.  R.  273  ;  McCrea  v.  Purmont,  16  Wend. 
R.  460,  S.  C.  5  Paige's  R.  620  ;  Heart  v. 
Johnson,  13  Vt.  R.  19 ;  Manri  v.  Hefferman, 
15  Johns.  R.  58  ;  Pigou  v.  French,  1  Wash. 
C.  C.  R.  278  ;  Bennett  v.  Buchanan,  3  Port. 
(Ind.)   R.  47 ;  Williamson's  Admrs.  v.  Hall, 

1  McCook's  R.  190  ;  Collins,  Admrs.,  v.  Boyd, 
14  Ala.  R.  505  ;  Hommell  v.  Gamewell,  5 
Blackf.  R.  5  ;  Shepard  v.  Ogden,  2  Scam.  R. 
257  ;  Hill  V.  Campbell,  10  B.  Mon.  R.  80  ; 
Laughlin  v.  Ferguson,  6  Dana's  R.  113  ; 
Clark  V.  Foxcroft,  7  Maine  R.  348  ;  Gillespie, 
Admr,,  v.  Cresswell  et  al.,12  Gill.  &  Johns.  R. 
27 ;  Mowry  v.  Adams,  14  Mass.  R.  327 ; 
Williams  et  ux.  v.  Moore,  9  Pick.  R.  432 ;  Ap- 
pleton  et  al.  v.  Bascomb  et  al.,  3  Mete.  R. 
171  ;  Wood  V.  Leland,  1  Id.  389  ;  Ford  v.  ' 
Keith,  1  Mass.  R.  138  ;  Johnson  v.  Johnson, 
11  Id.  359  ;  The  State,  to  the  use,  Ac,  v. 
Reynolds  et  al.,  3  Mo.  R.  70  ;  JeflFers  et 
al.  V.  Johnson,  1  Zabr.  R.  76  ;  Chace  v.  Hin- 
man,  8  Wend.  R.  452  ;  Aberdeen  v.  Black- 
well,  6  Hill's  R.  324  j  Bonney  v.  Seely  et  al., 

2  Wend.  R.  481  ;  Powell  v.  Smith,  8  Johns. 
R.  249  ;  Tom  v.  Goodrich,  2  Id.  213  ;  Gould 
V.  Gould,  8  Cow.  R.  168  ;  Wynn,  Admr.,  v. 
Brooke  et  al.,  5  Raw.  R.  106  j  Cornwells  Ap. 
7  Wat.  &  Serg.  R.  305  ;  Pursel  v.  Ellis,  5  Id. 
525  ;  Baily  &  Brownfield,  20  Pa.  St.  R.  41  ; 
Apgarv.  Hiler,  4  Zabr.  R.  812  ;  for  by  the  very 
fact  of  payment,  he  becomes  the  creditor  of 


190 


OF   CIIOSES   IN   ACTION. 


creditor  of  tlie  principal  debtor  for  the  amount;  but  although  the 
debt  paid  should  have  been  secured  to  the  original  creditor  by 


the  principal,  taking  the  position  which  the 
original  creditor  held,  and  entitled  to  all 
the  preferences  which  the  original  creditor 
claimed  ;  Youghe  v.  Linton,  6  Richard.  L.  R. 
275  ;  Winchester  v.  Beardin,  10  Hump.  R. 
247  ;  McDaniels  v.  The  Flower  Brook  Manu- 
fac.  Co.,  23  Vt.  R.  274  ;  Wescott  v.  King,  14 
Barb.  Sup.  C.  R.  33  ;  Foster  v.  The  Trus- 
tees of  the  Athenseum,  3  Ala.  R.  310 ; 
Sanders  et  al.  v.  Watson  etal.,  14  Id.  198; 
McDowell  V.  The  Bank  of  Wilmington  and 
Brandywine,  1  Harring.  R.  369  j  Pitzer  v. 
Harmon,  8  Blackf.  R.  112  ;  Schoolfield's 
Admr.  v.  Rudd,  Ac,  9  B.  Mon.  R.  292;  Gri- 
der  V.  Payne,  9  Dana's  R.  191  ;  Patterson  v. 
Pope,  5  Id.  243  ;  Sargent  v.  Salmond  et  al., 
27  Maine  R.  348  ;  Eppes  et  al.,  Exrs.,  v. 
Randolph,  2  Call's  R.  103  ;  Graves  v.  Webb, 
1  Id.  443  ;  Tinsley  v.  Oliver's  Admr.,  &c.,  5 
Munf.  R.  419  ;  Tinsley  v.  Anderson,  3  Call's 
R.  329  ;  Enders,  Ac,  v.  Brune,  4  Rand.  438  ; 
Watts  et  al.  v.  Kinney  et  ux.,  3  Leigh's  R. 
272  ;  Cole.  Co.  et  al.  v.  Augbey  et  al.,  12  Mo. 
R.  132  ;  The  New  York  State  Bk.  v.  Fletcher 
6  Wend.  R.  85  ;  Clason  et  nl.  v.  Morris  et  al.. 
Assignees,  10  Johns.  R.  524  ;  Waddington  et 
al.  V.  Verdenburgh,  2  Johns.  Ch.  R.  227  ; 
Salmon  v.  Clagett,  3  Bland's  R.  173;  Far- 
mers Bk.  of  Reading  v.  Gibson,  6  Pa.  St.  R. 
51 ;  and  it  has  been  held,  that  where  the  prin- 
cipal became  insolvent,  and  made  an  assign- 
ment for  the  benefit  of  his  creditors,  previous 
to  the  payment  by  the  surety,  the  surety  was 
notwithstanding,  entitled  to  full  indemnifica- 
•tion  ;  Haddens  v.  Chambers,  2  Dal.  R.  236  ; 
McMullen  t;.  The  Bk.  of  Penn  Township,  2 
Pa.  St.  R.  343  ;  Beaver  v.  Beaver,  23  Pa. 
St.  R.  167  ;  for  payment  by  a  surety  has  such 
a  reference  back  to  the  original  undertaking, 
that  it  overrides  all  intermediate  equities,  as 
of  an  assignee  of  a  claim  against  the  surety,  as- 
signed by  the  principal,  before  payment;  Bar- 
ney V.  Grover,  28  Vt.  R.  391. 

Not  only  is  the  surety  who  pays  the  debt 
of  his  principal,  entitled  to  hold  the  position 
as  to  priority,  which  the  original  creditor 
occupied,  but  also  to  be  subrogated  to  all  the 
rights,  privileges,  or  Hens,  which  were  enjoy- 
ed by  the  first  creditor  ;  King  v.  Baldwin  et 
a].,  2  Johns.  Ch.  R.  654  ;  La  Farge  v.  Herter 


et  al.,  11  Barb  Supre.  C.  R.  159  ;  McDaniels 
V.  The  Flower  Brook  Manufac.  Co.,  23  Vt. 
R.  274  ;  Goodyear  11.  Watson,  14  Barb.  Supre. 
R.  481  ;  Bradley  et  al.  v.  Spafford,  3-Fost.  R. 
444  ;  N.  Y.  Savings  Bk.  v.  Colcord,  15  N.*H. 
R.  119  ;  Foster  v.  The  Trustees  of  the  Athe- 
naeum, 3  Ala.  R.  310  ;  Lumpkin,  Admr.,  v. 
Mills,  4  Geo.  R.  343  ;  Perkins'et  al.  v.  Ker- 
shaw et  al.,  1  Hill's  R.  351  ;  Burrows  v.  Mc- 
Whann,  1  Dess.  R.  409  ;  Sprigg  v.  Braman, 
6  La.  R.  59  ;  Cheeseborough  v.  Millard,  1 
Johns.  Ch.  R.  413  ;  Cuyler  v.  Ensworth,  6 
Paige's  R.  32  ;  Ontario  Bk.  v.  Walker  et  al., 
1  Hill's  (N.  Y.)  R.  652  ;  State  Bk.  v.  Fletch- 
er, 5  Wend.  R.  85  ;  Mathews  v.  Aikin,  1 
Comst.  R.  599  ;  Schnitzel's  Ap.,  49  Pa.  St. 
R.  23  ;  and  the  surety,  also,  may,  after  pay- 
ment, claim  the  benefit  of  all  collaterals,  held 
by  the  creditor  to  secure  his  debt  ;  McDan- 
iels V.  The  Flower  Brook  Manufac.  Co.,  23 
Vt.  R.  274;  In  the  matter  of  Samuel  H. 
Babcock,  3  Story's  R.  393  ;  N.  Y.  Savings 
Bk.  V.  Colcord,  15  N.  H.  R.  119  ;  Foster  v. 
The  Trustees  of  the  Athenasum,  3  Ala.  R. 
310  ;  Lyon  v.  Leavit  et  al..  Id.  430  ;  Cullum 
V  Emanuel  et  al.,  1  Id.  23  ;  Browne.  Lang 
et  al.,  4  Id.  53  ;  Hampton  v.  Levy,  1  Mo- 
Cord's  R.  112;  Worthington  v.  Ferguson,  4 
Har.  &  Johns.  R.  522  ;  Tankersley  v.  Ander- 
son, 4  Desaus.  R.  44  ;  Miller  v.  Pendleton,  4 
Hen.  &  Munf.  R.  436  ;  McDowell  v.  The  Bk. 
of  Wilmington  and  Brandywine,  1  Harring. 
R.  369  ;  Bradford,  Admr.,  et  al  v.  Marvin  et 
al.,  2  Fla.  R.  475  ;  Patterson  v.  Pope,  6 
Dana's  R.  243  ;  Norton  v.  Soule,  2  Maine  R. 
341  ;  Richardson  v.  The  Washington  Bk.,  3 
Metcf.  R.  640  ;  Green  v.  Kemp,  13  Mass.  R. 
515  ;  Bowditch  v.  Green,  3  Metcf.  R.  363  ; 
Miller  v.  Woodward  et  al.,  Admrs..  8  Mo.  R. 
169  ;  Crump  et  al.  v.  McMurtry,  Id.  408  ; 
Elwood  et  al.  v.  Deifendorf  et  al.,  5  Barb. 
Supre.  C.  R.  398  ;  Hodges  v.  Armstrong, 
Admr.,  3  Dev.  R.  253  ;  Kinley  t>.  Hill,  4  Wat. 
&  Serg.  R.  426  ;  Knox  v.  Moatz,  15  Pa.  St. 
R.  74  ;  Erb's  Ap.,  2  Pa.  R.  298  ;  Cornwell's 
Ap.,  7  Wat.  &  Serg.  R.  398  ;  Lathrop's  Ap., 
1  Pa.  St.  R.  512  ;  Winebrenner's  Ap.,  7  Id. 
333  ;  Pott  V.  Nathans,  1  Wat.  &  Serg.  R.  155; 
Rittenhouse  v.  Levering,  6  Id.  190  ;  Yard  v. 
Patton,  13  Pa.  St.  R.  287  ;  Gossin  v.  Brown, 


OF    DEBTS. 


191 


the  bond  under  seal  of  the  debtor  and  his  surety,  the  surety,  having 


paid  the  debt,  would  until  recently  have  become   *the 
simple  contract   creditor  only  of  the   principal   debtor; 


[*109] 


11  Pa.  St.  R.  531  ;  Miller  et  al.,  Assignees, 
V.  Ord,  Exr.,  2  Bin.  R.  382  ;  Pride  v.  Boyce, 
Admr.,  Rice's  Eq.  R.  275  ;  Exrs.  of  Gadsden 
V.  Exrs.  of  Lord,  1  Dessau.  R.  214  ;  Uzzel  v. 
Mack,  4  Hump.  R.  319  ;  Bower's  Est.,  23  Pa. 
St.  R.  294  ;  Brewer  v.  Franklin  Mills,  42  N. 
H.  R.  292  ;  and,  it  seems  to  be  generally  al- 
lowed in  the  American  States,  which  have,  in 
this  respect,  placed  the  doctrine  of  principal 
and  surety  on  a  wider  and  more  liberal  basis, 
than  that  prescribed  by  the  law  of  Eng- 
land, that  where  the  claim  of  the  credi- 
tor is  evidenced  by  bond,  judgment,  Ac,  the 
claim  is  not  extinguished  by  the  payment  of 
the  debt  by  the  surety,  but  that  it  is  still 
subsisting  for  his  benefit,  and  he  will  be  en- 
titled to  an  assignment  of  the  bond,  judg- 
ment, or  other  evidence  of  the  debt,  or  to 
deal  with  it  as  if  it  were  actually  assigned  to 
him,  and  enjoy  from  it  all  the  advantages 
which  the  original  creditor  could  have  ob- 
tained. In  some  of  the  States  this  right  has 
been  conferred  upon  the  surety  by  equitable 
adjudication,  and  in  others  it  is  expressly 
given  by  statute  ;  Edgerly  v.  Emerson,  3 
Fost.'R.  565  ;  Grove  v.  Brien,  1  Md.  R.  439  ; 
Carroll,  Exr.,  v.  Bowie,  7  Gill's  R.  34; 
Goodyear  v.  Watson,  14  Barb.  Supre.  C.  R. 
481  ;  McDowell  v.  The  Bank  of  Wilmington 
and  Brandywine,  1  Harring.  R.  369  ;  Daven- 
port V.  Hardeman,  5  Geo.  R.  680  ;  Bailey  -t'. 
Mizell,  4  Id.  123  ;  Harris  v.  Wynne,  Id.  521  ; 
Morris  v.  Evans  et  al.,  2  B.  Mon.  R.  86  ; 
Morris  v.  Page,  9  Dana's  R.  433  ;  Norton  v. 
Soule,  2  Maine  R.  341  ;  Creager  v.  Brengle, 
5  Har.  &  Johns.  R.  234;  Merryman  et  al.  v. 
The  State,  at  the  instance  of  Harris,  Id.  423  ; 
Colegnte,  Ac,  v.  The  Fredericktown  Savings 
Institution,  <tc.,  11  Id.  114;  Holling.sworth, 
Admr.,  v.  Floyd,  2  Har.  &  Gill's  R.  87  ;  Erb's 
Ap.,  2  Pa.  R.  298  ;  Gossin  v.  Brown,  11  Pa. 
St.  R.  532;  Croft  v.  Moore,  9  Wat.  R.  451  ; 
Morris  v.  Oakford,  9  Pa.  St.  R.  498  ;  Lathrop's 
Ap.,lld.  617;  Burns  et  al.  f.  The  Hunting- 
don Bank,  1  Pa.  R.  395  ;  Exrs.  of  Gadsden 
V.  Exrs.  of  Lord,  1  Dessau.  R.  214;  Ounn  et 
al.  V.  Tunnehill,  2  Yerg.  R.  244  ;  Floyds  v. 
Goodwin,   8   Id.   494  ;  Wade  v.   Green,   and 


Green  v.  Wade,  3  Hump.  R.  547  and  558  ; 
Robinson  et  al.  v.  Sherman  et  al.,  2  Gratt. 
R  181;  Powell's  Exrs.  v.  White  et  al.,  11 
Leigh's  R.  309  ;  McCormick's  Admrs.  v.  Ir- 
win, 35  Pa.  St.  R.  Ill  ;  Denny  v.  Lyon,  38 
Id.  98;  Jones  v.  Turcher,  15  Ind.  R.  308; 
Hanner  v.  Douglass,  4  Jones's  Eq.  R.  262  ; 
Fawcetts  v.  Kimmey,  23  Ala.  R.  162  ;  but 
this  last  position  is  denied  by  several  cases, 
favoring  the  recent  English  doctrine  ;  Foster 
V.  The  Trustees  of  the  Athenaeum,  3  Ala.  R. 
310  ;  Morrison  et.  al.  v.  Marvin,  6  Id.  797  ; 
Sanders  et  al.  v.  Watson  et  al.,  14  Id.  198  ; 
Uzzell  V.  Mack,  4  Hump.  R.  319  ;  Miller  v. 
Porter,  5  Id.  298  ;  Hays  v.  Steamboat  Colum- 
bus, 23  Mo.  R.  232. 

Inasmuch  as  the  surety  who  pays  the  debts, 
is  entitled  to  the  benefit  of  all  the  collaterals 
held  by  the  creditor,  it  follows  as  a  conse- 
quence, that  the  creditor  is  bound  to  take 
care  of  them,  and  if  he  parts  with  them,  or 
they  become  impaired  in  value,  by  his  own 
act,  the  surety  will  be  discharged,  either  ab- 
solutely, or  pro  tanto,  in  proportion  to  the 
value  of  the  security,  which  has  been  lost  ; 
Hayes  v.  Ward,  4  Johns.  Ch.  R.  123  ;  Baker 
V.  Briggs,  8  Pick.  R.  122  ;  Goodloe  v.  Clay, 
6  B.  Mon.  R.  226  ;  Ward  v.  Vass,  7  Leigh's 
R.  135  ;  Payne  v.  The  Commercial  Bk.,  6 
Smed.  &  Mar.  R.  24  ;  Neff  s  Ap.,  9  Wat.  & 
Serg.  R.  36  ;  Everley  v.  Rice,  20  Pa.  St.  R. 
297  ;  Holt  v.  Body,  6  Id.  207  ;  Smith  v.  Day, 
23  Vt.  R.  656  ;  N.  Y.  Savings'  Bk.  v.  Col 
cord,  15  N.  H.  R.  119  ;  Pitts  et  al.  v.  Cong- 
don,  2  Comst.  R.  352  ;  Bk.  of  Gettysburg  v. 
Thompson,  3  Grant's  Cas.  117;  Barrow  v. 
Shields,  13  La.  AS.  R.  57  ;  andso,  where  the 
creditor  has  it  in  his  power  to  receive  pay- 
ment of  the  whole,  or  a  part  of  his  debt,  and 
neglects  his  opportunity  ,  the  surety  will  be, 
j)ro  tanto,  discharged  ;  Ramsay  v.  The  West- 
moreland Bk.,  2  Pa.  R.  203  ;  Commonwealth 
V.  Miller,  8  Serg.  &  Raw.  R.  452  ;  Lichten- 
thaler  v.  Thompson,  13  Id.  157;  Pipher  v. 
Lodge,  16  Id.  214;  Commonwealth  v.  Haas, 
Id.  252  ;  Dixon  v.  Ewing,  3  0.  R.  230  ;  Car- 
penter V.  Devon,  6  Ala.  R.  718  ;  Smeed  v. 
White,  3  J.   J.  Marsh.    R.    525  ;  Givens  v. 


192 


OF    CIIOSES   IN   ACTION. 


unless  he  should  have  taken  the  precaution  to  procure  from  such 
debtor  a  countor-bond  for  his  own  iudemnity.(j/)     The  surety, 


(y)  Copis  V.  Middleton,  Turn.  &  Russ.  224. 


Briscoe,  Id.  534 ;  Jones  v.  Bullock,  3  Bibb's 
R.  467  ;  The  Farmers'  Bk.  of  Canton  v.  Rey. 
nolds,  13  0.  R.  84  ;  Baker  v.  Fordyce,  9  Pa. 
St.  R.  275  ;  Talmage  v.  Burlingaine,  Id.  21  ; 
Ferguson  v.  Turner,  7  Mo.  R.  497  ;  Curan  v. 
Colbert,  3  Ga.  R.  239  ;  Brown  v.  Riggins,  3 
Id.  406  ;  The  State  Bk.  v.  Edwards  et  al..  20 
Ala.  R.  512  ;  Exrs.  of  Riggins  v.  Brown,  12 
Ga.  R.  273  ;  Everly  v.  Rice,  20  Pa.  St.  R.  297; 
Richards  «.  Commonwealth,  40  Pa.  St.  R.  146. 
The  fact  that  a  surety  has  a  right  to  look 
to  his  principal,  for  all  payments  made  by 
that  surety  on  the  principal's  behalf,  fur- 
nishes one  of  the  reasons,  why  a  contract 
made  between  the  principal  and  creditor, 
to  postpone  the  day  of  payment  (or  other 
completion  of  the  original  agreement),  to 
which  the  surety  is  not  a  party,  will  discharge 
the  surety  from  his  liability  ;  for  the  creditor 
is  bound  to  proceed  against  the  principal  at 
the  desire  of  the  surety,  which  is  a  privilege 
granted  to  the  surety  for  his  protection,  and 
if,  by  his  express  agreement  with  the  princi- 
pal, the  creditor  is  prevented  from  pursuing 
his  remedy  when  requested,  he  is  prevented 
from  fulfilling  his  implied  contract  with  the 
surety,  who  is  thereby  discharged,  unless  he 
be  privy,  or  consent  to,  the  new  agreement ; 
but  see  on  this  subject.  King  v.  Baldwin  et 
al.,  2  Johns.  Ch.  R.  554  ;  Brinager's  Admr. 
V.  Phillips,  1  B.  Mon.  R.  283  ;  United  States 
V.  Samuel  &  Jno.  L.  Howell,  4  Wash.  C.  0. 
R.  620  ;  The  Bk.  of  Steubenville  v.  Carrol  et 
al.,  Admrs.,  5  0.  R.  207  ;  The  Trustees  v. 
Miller,  3  Id.  261 ;  Niblo  v.  Clark,  3  Wend. 
R.  24,  S.  C.  6  Id.  236  ;  Bk.  of  Washington «;. 
Barrington,  2  Pa.  R.  27  ;  Afalrath  v.  Thomp- 
son, 6  Hill's  R.  540,  S.  C.  2  Comst.  R.  185  ; 
Birkhead  v.  Brown,  5  Hill's  R.  634  ;  Dobbin 
V.  Bradley,  17  Wend.  R.  422  ;  Fellowes  v. 
Prentiss,  3  Denio's  R.  512  ;  Hibbs  v.  Rue,  4 
Pa.  St.  R.  348 ;  Walsh  v.  Bailie,  10  Johns. 
R.  180  ;  Wright  v.  Judson,  8  Wend.  R.  512  ; 
GifFord  v.  Allen,  3  Mete.  R.  255  ;  Greely  v. 
Dow,  2  Id.  176  ;  Rathbone  v.  Warren,  10 
Johns.  R.  587  ;  Crosby  v.  Wyatt,  ION.  H.  R. 
318  j  Hutchinson  v.  Moody,  18  Maine  R.  393  ; 
Leavitt  v.  Savage,  16  Id.  72  j  Davis  v.  The 


People,  3  Gilm.  R.  409  ;  Comegys  v.  Booth, 
3  Stew.  R.  14  ;  Inge  v.  The  Branch  Bk.,  8 
Pet.  R.  108  ;  Clippenger  v.  Cripps,  2  Wat. 
R.  45  ;  The  Bk.  of  Steubenville  v.  Hoge, 
6  0.  R.  17  ;  Wayne  v.  Kirby,  2  Bail.  R. 
531  ;  Denis  v.  Reeder,  2  McCord's  R.  451  ; 
Reddish  v.  Watson,  5  0.  R.  510;  Baldwin 
V.  The  Western  Reserve  Bank,  Id.  273 ; 
Hunter's  Admr.  v.  Jett,  4  Rand.  R.  104 ; 
Dundas  v.  Sterling,  4  Pa.  St.  R.  73  ;  Crosby 
V.  Wyatt,  10  N.  H.  R.  318;  The  Stafford 
Bk.  V.  Crosby,  8  Maine  R.  191  ;  Blackstone 
Bk.  V.  Hill,  10  Pick.  R.  129  ;  Bagley  v.  Bur- 
zell,  19  Maine  R.  88  ;  Rhoads  v.  Frederick,  8 
Wat.  R.  448  ;  Payne  v.  The  Commercial  Bk. 
of  Natchez,  6  Smed.  &  Mar.  R.  24 ;  Welling- 
ton V.  Gary,  7  Id.  522 ;  Joslyn  v.  Smith,  15 
Vt.  R.  353  ;  Waters  v.  Simpson,  2  Gilm.  R. 
576  ;  Braman  v.  Hawk,  1  Blackf.  R.  392  ; 
Cornan  v.  The  State,  4  Id.  241 ;  Horter  v. 
Moore,  5  Id.  367;  Parnell  v.  Price,  3  Rich. 
R.  121  ;  Miller  v.  Stein,  2  Pa.  St.  R.  286  ; 
Munford  v.  The  Overseers  of  the  Poor,  2 
Rand.  R.  313;  Harnsberger's  Exr.  v.  Gei- 
ger'sAdmr. ,  2  Graft.  R.  144;  Reynolds  v. 
Ward,  5  Wend.  R.  501;  Bk.  of  Utica  v. 
Ives,  17  Id.  501  ;  McKinney's  Exr.  v.  Wal- 
ler, 4  Leigh's  R.  434;  Alcock  v.  Hill,  4 
Id.  622  ;  Nichols  v.  Douglass,  3  Mo.  R.  49 ; 
Tudor  V.  Goodloe,  1  B.  Mon.  R.  322;  An- 
derson V.  Manon,  7  Id.  217 ;  Duncan  v.  Reid, 
8  Id.  382  ;  Pyle  v.  Bestock,  10  Ala.  R.  589, 
S.  C.  11  Id.  256  ;  Vilas  v.  Pusey,  1  Comst. 
R.  274  ;  Pyle  v.  Clark,  3  B.  Mon.  R.  262  ; 
Scott  V.  Hull,  6  Id.  285  ;  Graves  v.  Graves, 
Id.  213;  Mullin  v.  McCoan,  7  Paige's  R. 
462;  Bangs  v.  Strong,  11  Id.  11,  S.  C.  7 
Hill's  R.  250;  HufiTman  v.  Hurlburt,  13 
Wend.  R.  377  ;  Hallett  v.  Holmes,  18  Johns. 
R.  28  ;  Fletcher  v.  Gamble,  9  Ala.  R.  335  ; 
Bower  v.  Tiernan,  3  Denio's  R.  378  ;  Yancey 
V.  Littlejohn,  2  Hawk's  R.  525  ;  Branch  Bk. 
of  Mobile  v.  James,  9  Ala.  R.  949  ;  Grafton 
Bk.  V.  Woodward,  5  N.  H.  R.  99 ;  Bailey  v. 
Adams,  10  Id.  162  ;  Fowler  v.  Brooks,  13  Id. 
240  ;  McComb  v.  Keteridge,  14  0.  R.  348 ; 
Spring  V.  The  Bk.  of  Mount  Pleasant,  10 
Pet.  R.  257  ;  McLemore  v.  Powell  et  al.,  12 


OF   DEBTS. 


193 


however,  would  have  been  entitled  to  the  benefit  of  all  collateral 
securities  which  the  creditor,  whom  he  had  repaid,  held  for  the 


Wheat  R.  554 ;  Bk.  of  the  United  States  v. 
Hatch,  6  Pet.  R.  250  ;  United  States  v.  The 
Admrs.  of  Hillegas,  3  Wash.  C.  C.  R.  70  ; 
Miller  v.  Stewart,  4  Id.  26,  S.  C.  9  Wheat. 
R.  680;  United  Stales  v.  Tillotson  et  al.,  1 
Paine's  C.  C.  R.  306  ;  Gass  v.  Stinson,  2 
Sumn.  R.  453  ;  Suydam  &  Co.  v.  Vance,  2 
McL.  R.  99  ;  The  Seventh  Ward  Bk.  v.  Han- 
rick,  2  Story's  R.  416  ;  Low  v.  Underbill,   3 


West  Branch  Bk.,  7  Wat.  &  Serg.  R.  375  ; 
Bellows  V.  Lovell,  5  Pick.  R.  307  ;  Adams 
Bk.  V.  Anthony,  18  Id.  238  ;  Hubbard  v. 
Davis,  1  Aiken's  R.  296  :  Montpelier  Bk.  v. 
Dixon,  4  Vt.  R.  599  ;  Page  v.  AVebster,  15 
Maine  R.  249  ;  Mahurin  v.  Pearson,  8  N.  H. 
R.  539  ;  Pintard  v.  Davis,  1  Spencer's  R. 
205  ;  Croughton  v.  Duval,  3  Call's  R.  61  ; 
Denis  v.  Rider,  2  McL.  R.   451  ;  Jenkins  v. 


McL.  R.  376  ;  Musgrave  et  al.  v.  Glasgow,  3    Clark,  7  0.  R.  72  ;  In  the  matter  of  Saml.  H. 


Port.  (Ind.)  R.  31  ;  Cheek  et  al.  v.  Glass, 
Id.  286  ;  Herbert  v.  Dumont  et  al.,  Id.  346  ; 
Govan,  Exrx.,  v.  Binford,  25  Missi.  R.  151; 
Thornton  et  al.  v.  Dobney,  23  Id.  559  ;  Pres- 
cott  V.  Brinsley  et  al.,  6  Cush.  R.  233  ;  Mot- 
tram  et  al.  V.  Mills,  2  Sandf.  Sup.  C.  R. 
189;  Wagman  et  al.  v.  Hoag,  14  Barb. 
Sup.  C.  R.  232  ;  La  Farge  v.  Herter  et  al., 
11  Id.  159  ;  Turrill  v.  Boynton  et  al.,  23  Vt. 
R.  142  ;  Whittle  v.  Skinner,  Id.  531  ;  Wads- 
worth  et  al.  V.  Allen,  &c.,  8  Gratt.  R.  174 
Brubaker  v.  Okeson,  36  Pa.  St.  R.  519 
Strickler  v.  Burkholder,   47  Pa.  St.  R.   476 


Babcock,  3  Story's  R.  393  ;  Overturf  v.  Mar- 
tin, 2  Cart.  (Ind.)  R.  507;  Wetzel  v.  Spons- 
ler's  Exrs.,  18  Pa.  St.  R.  460;  Merritt  v. 
Lincoln,  21  Barb.  R.  249.  But  unless  so  re- 
quested, the  creditor  is  not  bound  to  proceed 
against  the  principal,  and  mere  delay,  or  in- 
action on  the  part  of  the  creditor  in  pursuing 
his  remedy,  will  not  discharge  the  surety  ; 
King  V.  Baldwin  et  al.,  2  Johns.  Ch.  R.  554  ; 
Fulton  V.  Matthews,  15  Johns.  R.  433  ;  The 
People  V.  Russell,  4  Wend.  R.  570  ;  Hunt  v. 
Bridgham,  2  Pick.  R.  581  ;  Jordan  v.  Trum- 
bo,  6  Gill  &  Johns.  R.  103  ;   Sebley  v.  McAl- 


Wright  V.  Storrs,    6  Bosw.  R.   600  ;  Pilgrim  lister,  8  N.  H.  R.  389  ;  The  Farmers'  Bk.  of 

V.  Dykes,   24  Texas  R.  383  ;  Cunningham  v.  Canton  v.  Reynolds,   13  0.  R.  84  ;  Haynes  v. 

Wrenn,  23  111.  R.  64.  Corrington,  9  Sme  &  Mar.  R.  470  ;  Anderson 

That  the  surety  will  be  discharged,  where  v_  Menon,  7  B.    Mon.   R.    217  ;  Johnson  v. 

he  is   injured   by  the  creditor  neglecting  to  Searcy,    4   Yerg.    R.   182  ;    Dawson    v.    The 

proceed  against  the  principal  upon  the  sure-  Real  Estate   Bk.,  5   Ark.    R.  283;  Locke   v. 

ty's  request,  see  the  following  cases  :  Pain  v.  The  United    States,  3  Mas.  R.  446  ;  United 

Packard  et    al.,   13  Johns  R.   174;  King  v.  States  t;.  Hunt,  1  Gallis.  R.  32  ;  Townsend  v. 


Baldwin  et  al.,  17  Id.  384  ;  United  States  v. 
Simpson,  3  Pa.  R.  437  ;  Strader  v.  Hough- 
ton, 9  Port.  R.  334;  Towns  v.  Riddle,  2 
Alab.  R.  694  ;  Cope  v.  Smith,  8  Serg.  &  Raw. 
R.  110  ;   Gardner  v.  Ferree,  15  Id.  28;  The 


Riddle,  2  N.  H.  R.  448  ;  Tudor  v.  Goodloe, 
3  B.  Mon.  R.  332  ;  Commercial  Bk.  v. 
French,  21  Pick.  R.  486  ;  Alcock  v.  Hill,  4 
Leigh's  R.  622  ;  Harrison  v.  Lane,  4  Bibb's 
R.  466  ;  Spring  v.  The  Bk.  of  Mount  Pleas- 


Erie  Bk.  V.  Gibson,  1  Wat.  R.  143;  Wilson    ant,    10  Pet.   R.  257;  Reynolds  v.  Ward,  5 
V.  Glover,  3  Pa.   St.  R.  404;  Greenawalt  v.    Wend.  R.  501;  Norris  v.  Crummie,  2  Rand. 


Kreider,  Id.  264 ;  Wright  v.  Stockton,  5 
Leigh's  R.  153  ;  Parrish  v.  Gray,  1  Hump. 
R.  88  ;  Braman  v.  Honck,  1  Blackf.  R.  393  ; 
Morlandw.  The  State  Bk.,  1  Breese's  R.  207  ; 
Jloward  v.  Brown,  3  Geo.  R.  523  ;  Bolton  v. 
Lundy,  6  Misso.  R.  46  ;  Brice  v.  Edwards,  1 
Stew.  R.  11  ;  Goodman  v.  Griffin,  3  Id.  160  ; 
Shehan  v.  Hampton,  8  Id.  S42  ;  Huffman  v. 
Hurlbert,  13  Wend.  R.  377  ;  Ilerrick  v.  Borst, 
4   Hill's   R.    650  ;    Beardsley  v.    Warner,    6 


R.  328  ;  Hunter's  Admr.  v.  Jelt,  4  Rand.  R. 
104  ;  McKinney's  Exr.  v.  Waller,  1  Leigh's 
R.  434;  Alcock  v.  Hill,  4  Id.  622;  Lenox 
V.  Prout,  3  Wheat.  R.  520 ;  Doe  v.  The 
Postmaster-General,  1  Pet.  R.  318;  Locke 
V.  The  Postmaster-General  of  the  United 
States,  3  Mas.  R.  446  ;  Luke  v.  Leland  et 
al.,  6  Cush.  R.  259  ;  Kirby  v.  Studebaker,  15 
Ind.  R.  45  ;  Hunt  v.  Knox,  34  Miss.  R.  655  ; 
and  some  of  the  cases  have  gone  so  far  as  to 


Wend.  R.  610,  S.  C.  8  Id.  194;  Beebe  v.  The    decide,  that  after  a  judgment  has  been  ob- 

13 


194 


OF    CIIOSES   IN    ACTION. 


debt;  but  he  was  not  to  be  entitled  to  the  original  bond  executed 
by  the  debtor,  because  that  was  at  an  end  by  the  very  fact  of  the 


tained  by  the  creditor  against  the  principal, 
and  a  writ  of  execution  placed  in  the  hands 
of  the  sheriff,  a  subsequent  direction  given  to 
the  sheriff  not  to  proceed,  will  not  discharge 
the  surety,  unless  there  has  been  a  levy  made 
on  the  property  of  the  principal  debtor  ;  Len- 
nox V.  Prout,  3  Wheat.  R.  520  ;  Sawyer  v. 
Bradford,  6  Ala.  R.  572  ;  The  Farmers'  Bank 
of  Canton  v.  Reynolds,  13  0.  R.  84 ;  The 
Union  Bank  of  Tennessee  v.  Govan,  10  Smed. 
&  Mar.  R.  333  ;  McKenney's  Exrs.  v.  Wal- 
ler, 1  Leigh's  R.  434;  Morrison  v.  Hartman, 
14  Pa.  St.  R.  55  ;  Creath's  Admr.  v.  Sims,  5 
How.  R.  192  ;  but  if  a  levy  has  been  made 
under  the  execution,  a  discontinuance  of  the 
proceedings  by  the  creditor,  will  discharge  the 
surety,  because  the  creditor  will  have  had  it 
in  his  power  to  satisfy  the  debt ;  see  Exrs. 
of  Riggins  V.  Brown,  12  Geo.  R.  273;  The 
State  Bank  v.  Edwards  et  al.,  20  Ala.  R.  512  ; 
Ferguson  v.  Turner,  7  Mo.  R.  497;  Jones  v. 
Bulcock,  3  Bibb's  R.  467  ;  Lichtenthaler  v. 
Thompson,  13  Serg.  &  Raw.R.  157;  Brown 
V.  Kidd,  34  Missi.  R.  291  ;  and  other  cases 
above  cited  ;  unreasonable  delay  in  entering 
a  judgment  note,  was  held  to  discharge  a 
guarantor,  where  it  was  not  shown,  that  the 
money  could  not  have  been  made  by  a  dili- 
gent entry  and  pursuit  of  the  judgment  :  Mil- 
ler V.  Beckley,  27  Pa.  St.  R.  317  ;  and  indul- 
gence for  a  definite  period,  and  founded  on  a 
new  consideration,  will  discharge  a  surety, 
for  this  amounts  to  a  change  of  the  original 
contract ;  Clarke  Co.  v.  Covington,  26  Missi. 
R.  470.  Some  of  the  authorities,  however, 
deny  the  position,  that  mere  inaction  or  delay 
on  the  part  of  the  creditor,  will  not  discharge 
the  surety,  the  chief  among  which  seem  to 
be,  The  People  v.  Jansen  et  al.,  7  Johns.  R. 
332  ;  Pennimann  et  al.  v.  Hudson,  14  Barb. 
Sup.  C.  R.  679  ;  of  which,  the  first  has  been 
overruled,  and  the  last  was  a  case  of  delay 
for  seven  months,  without  explanation,  where 
the  contract  was  "for  a  due  and  legal  dili- 
gence." See  on  this  point,  Herrick  v.  Orange 
Co.  Bk.,  27  Vt.  R.  584,  and  Spilman  v. 
Smith,  15  B.  Mon.  R.  123;  in  which  last  case 
it  was  held,  that  by  the  statutes  of  Kentucky, 
sureties  on  judgments  are  released  from  lia- 


bility, if  execution  is  delayed  to  be  sued  out 
for  twelve  months  after  the  judgment  is  due. 

It  has  been  said,  that  where  a  valid  con- 
tract is  made  between  the  creditor  and  prin- 
cipal, essentially  changing  the  terms  of  the 
original  contract,  the  surety  will  be  dis- 
charged, because  among  other  considerations, 
the  creditor  disables  himself  from  proceeding 
against  the  principal,  at  the  request  of  the 
surety,  and  consequently,  the  surety  is  in  dan- 
ger of  losing  his  chance  of  securing  himself 
from  loss  ;  and  so,  on  the  other  hand,  if  the 
creditor  informs  the  surety  that  he  will  not 
look  to  him  for  payment,  the  surety  will  be 
discharged  ;  Harris  v.  Brooks,  21  Pick.  R. 
195  ;  Carpenter  v.  King,  9  Mete.  R.  511  ;  Bk. 
V.  Kligensmith,  7  Wat.  R.  523  ;  Hogeboom  y. 
Herrick,  4  Vt.  R.  131  ;  Baker  v.  Briggs,  8 
Pick.  R.  122  ;  Deyell  v.  Odell,  3  Hill's  R.  215  ; 
Foster  v.  Walker,  34  Missi.  R.  365. 

But  a  mere  naked  agreement  between  cred- 
itor and  principal,  or  a  promise  made  to  delay 
or  give  time,  or  to  do  any  other  thing  chang- 
ing essentially  the  original  contract,  if  it  be 
unsupported  by  a  valid  consideration,  will 
not  discharge  the  surety  ;  Wheeler  et  al.  v. 
Washburn,  24  Vt.  R.  293  ;  Joslyn  v.  Smith;, 
13  Id.  353;  Montgomery  v.  Dillingham,  3 
Smed.  &  Mar.  R.  647;  Tudor  «.  Goodloe,-! 
B.  Mon.  R.  322;  Blackstone  Bk.  v.  Hill,  10 
Pick.  R.  129  ;  Bailey  v.  Adams,  10  N.  H.  R. 
162  ;  Wilson  v.  The  Bank  of  Orleans,  9  Ala. 
R.  847  ;  The  Oxford  Bank  v.  Lewis,  8  Pick. 
R.  458 ;  The  Stafford  Bk.  v.  Crosby,  8  Maine 
R.  191 ;  Freeman's  Bk.  v.  Rollins,  13  Maine 
R.  202  ;  Crosby  v.  Wyatt,  23  Id.  156  ;  AVeak- 
ley  V.  Bell,  9  Wat  R.  273  ;  Barker  v.  Mc- 
Clure,  2  Blackf.  R.  14  ;  Parmell  v.  Price,  3 
Richard.  R.  121  ;  Miller  v.  Stem,  2  Pa.  St.  R. 
286  ;  McLemore  v.  Powell  et  al.,  12  Wheat. 
R  554  ;  Bk.  of  United  States  v.  Hatch,  6  Pet. 
R.  250  ;  Bk.  of  Utica  v.  Ives,  17  Wend.  R. 
501  ;  United  States  v.  Nicboll,  12  Wheat.  R 
505  ;  United  States  v.  Kirkpatrick  et  al.,  9 
Id.  720  ;  Wagman  et  al.  v.  Hoag,  14  Barb. 
Sup.  C.  R.  232  ;  Cromwell  et  al.,  Admrs., 
V.  Holly  et  al.,  Exrs.,  5  Richard.  L.  R.  47  ; 
Draper  v.  Romeyn,  18  Barb.  R.  163  ;  Grover 
V.  Hoppock,  2  Dutch.  R.  191. 


OF   DEBTS.  195 

payment.(z)  In  the  words  of  Lord  Brougliam,(«)  the  court  ad- 
mitted the  surety's  right,  as  against  the  principal  debtor,  to  stand 
in  the  shoes  of  the  creditor,  but  said  there  were  no  shoes  for  him 
to  stand  in.  But  b}^  a  recent  enactment  every  surety  who  pays  a 
debt  is  now  entitled  to  have  assigned  to  him  every  judgment, 
specialty  or  other  security  which  shall  be  held  by  the  creditor  in 
respect  of  such  debt,  whether  such  judgmeot,  specialty  or  other 
security  shall  or  shall  not  be  deemed  at  law  to  have  been  satisfied 
by  the  payment  of  the  debt ;  and  such  person  shall  be  entitled  to 
stand  in  the  place  of  the  creditor  and  to  use  all  the  remedies,  and 
if  need  be  and  upon  a  proper  indemnity  the  name,  of  the  creditor 
in  any  action  to  obtain  from  the  principal  debtor  indemnification 
for  his  loss ;  and  the  payment  made  by  the  surety  shall  not  be 
pleadable  in  bar  of  any  action  or  other  proceeding  by  him. (6)  If 
there  should  have  been  more  than  one  surety,  any  one  surety, 
paying  the  whole  debt,  is  entitled,  according  to  the  general  prin- 
ciples of  justice,  to  contribution  from  his  co-sureties  in  equal 
shares,  or  if  they  should  have  been  sureties  to  unequal  amounts, 
then  in  proportion  to  the  respective  amounts  to  which  they  have 
made  themselves  liable. (c)*  And  the  *remedies  given  by 
the  act  above  mentioned  are  extended  to  co-sureties;    ^         -■ 

(z)  Turn.  &  Russ.  231  :  Dowbiggen  v.  Bourne,  2  You.  &  Coll.  462;  Jones  v.  Davids,  4 
Russ.  277;  Caulfield  v.  Maguire,  2  Jones  &  Lat.  164,  168. 

(a)  Hodgson  v.  Shaw,  3  My.  &  Keen,  183,  194. 

(h)  Stat.  19  &  20  Vict.  c.  97,  s.  5  ;  Lockhart  v.  Reilley,  1  De  Gex  &  Jones,  464. 

(c)  Deering  v.  Earl  of  AVinchelsea,  2  Bos.  &  Pul.  270,  272,  273  ;  Brown  v.  Lee,  6  Barn. 
&  Cress.  689,  E.  C.  L.  R.  vol.  13  ;  S.  C.  9  D.  &  C.  701. 


When  a  judgment  has  been  obtained  by  10  Paige's  R.  11,  S.  C.  7  Hill's  R.  250  ; 
the  creditor  against  the  principal,  the  rela-  Boughton  v.  The  Bk.  of  Orleans,  2  Barb.  Ch. 
tions  of  principal,  surety,  and  creditor,  are  R.  458  ;  Storms  v.  Thorn,  3  Barb.  Sup.  C.  R. 
not  thereby  altered  ;  The  Commonwealth  v.  314  ;  Hubbell  v.  Carpenter,  5  Id.  520. 
Miller,  8  Serg.  &  Raw.  R.  42  ;  Potts  v.  Na-  On  the  subject  of  Disc/targe  of  Surety,  see 
thans,  1  Wat,  &  Serg.  R.  155  ;  The  Manufac-  American  Leading  Cases,  volume  second, 
turers'  Bk.  v.  The  Bk.  of  Penna.,  7  Id.  335  ;  from  page  232  to  page  327,  where  the  Ameri- 
Talmage  v.  Burlingame,  9  Pa.  St.  R.  21  ;  can  authorities  are  collected. 
Newell  V.  Price,  4  How.  (Missi.)  R.  684;  i  Where  two  are  jointly  bound,  and  the 
Cowan  V.  Colbert,  3  Ga.  R.  239  ;  Carpenter  v.  liability  of  one  of  the  joint  promisors  is  sub- 
Devon,  6  Ala.  R.  710  ;  The  Commercial  Bk.  sequently  de.stroyed,  no  acknowledgment  of 
V.  The  Western  Reserve  Bk.,  11  0.  R.  444;  the  claim  by  the  other,  will  revive  the  debt 
La  Farge  v.  Herter,  3  Denio's  R.  157,  S.  C.  against  the  one  so  discharged  ;  this  is  ex- 
11  Barb.  Sup.  C.  R.  159  ;  Naylor  v.  Moody,  pressly  decided  in  the  case  of  Levy  v.  Cadet 
3  Blackf.  R.  93;  Deberry  v.  Adams,  9  Yerg.  et  al.,  17  Serg.  &  Raw.  R.  126,  in  which  the 
R.  52;  bindlay's  Exrs.  v.  The  Bk.  of  the  reason  upon  which  this  principle  is  founded, 
United  States,  2  McL.  R.  44  ;  Bangs  ?-■.  Strong,  is  set  forth  by  Rogers,  J.,  in  the  following 


196 


OF   CHOSES   IN    ACTION, 


provided  that  no  co-surety  shall  be  entitled  to  recover  from  any 
other  co-surety,  by  the  means  aforesaid,  more  than  the  just  pro- 
portion to  which,  as  between  those  parties  themselves,  such  last- 
mentioned  person  shall  be  justly  liable.(f/)  In  equity,  if  any 
surety  has  become  insolvent,  the  others  must  contribute  ratably 


(d)  Stat.  19  &  20  Vict.  c.  97,  s.  5. 


words  :  "  To  expose  persons  in  such  situations, 
to  the  risk  of  being  saddled  with  a  debt  at  an 
indefinite  length  of  time,  which  may  have 
been  discharged,  by  the  acknowledgment  of 
a  person  ignorant  of  the  fact  of  payment,  or 
from  insolvency,  or  perhaps  malice,  reckless 
of  consequences,  is  a  principle  which  I  am 
unwilling  to  sanction.  Persons  so  exposed, 
are  those  whom  the  statute  was  designed  to 
protect."  And  so,  too,  in  Exeter  Bank  v. 
Sullivan  et  al.,  6  N.  H.  R.  136,  Richardson, 
C.  J.,  remarks  :  "It  seems  to  be  now  become 
the  general  opinion,  that  an  acknowledgment 
of  a  debt,  that  will  warrant  the  finding  of  a 
new  promise,  must  be  an  unqualified  and 
direct  admission,  of  a  present  subsisting  debt, 
which  the  party  is  liable  and  willing  to  pay. 
If  the  debt  be  admitted,  but  the  debtor  at 
the  same  time  refuses  to  pay,  no  promise  can 
be  raised  by  implication.  The  acknowledg- 
ment, or  new  promise,  is  not  deemed  to  be  a 
continuance  of  the  original  promise,  but  a 
new  contract,  supported  by  the  original  con- 
sideration, or  evidence  of  such  contract. 
This  view  of  the  operation  of  the  acknowl- 
edgment  of  a  debt,  is  believed  to  be  conform- 
able to  the  general  current  of  the  English,  as 
well  as  of  the  American  decisions,  and  has 
been  explained  and  enforced,  by  Mr.  J.  Story, 
in  a  most  able  and  satisfactory  manner,  1  Pet. 
S.  C.  R.  351.  If,  then,  the  admission  of  a 
debt  does  not,  of  itself,  take  the  case  out  of 
the  statute,  but  is  only  evidence  of  a  prom- 
ise which  may  have  that  effect,  the  princi- 
ple, that  an  acknowledgment  by  one  joint- 
debtor,  will  take  a  case  out  of  the  statute  as 
to  another,  falls  to  the  ground.  There  is 
nothing  left  to  support  it.  For,  although 
one  joint-debtor  may  admit  the  fact  of  the 
existence  of  the  debt,  which  admission  will 
be  evidence  of  that  fact  against  another 
joint-debtor,  still  it  by  no  means  follows, 
that  by  such  admissions,  he  can  raise  a  new 
promise,  that  will  bind  another  joint-debtor. 


It  is  not  pretended  that  one  can  make  a  new 
contract,  in  such  a  case,  that  will  bind  the 
other." 

The  same  doctrine  is  applicable  to  princi- 
pal and  surety,  who,  in  the  eye  of  the  law, 
are  regarded  as  joint  promisors,  although  the 
liability  of  the  surety  may  be  of  a  second- 
ary nature;  and  hence,  in  Boyd,  Exr.,  v. 
Grant  et  al.,  Exrs.,  13  Serg.  &  Raw.  R.  124 
(which  was  the  case  of  an  acknowledgment 
made  by  the  executor  of  a  surety,  which  was 
not  regarded  as  sufficiently  clear  to  take  the 
case  out  of  the  statute),  Tilghman,  C.  J., 
says :  "  It  is  a  circumstance  of  some  weight, 
that  George  Grant  was  but  an  executor  of  his 
father,  who  was  surety  for  Martin,  and  there- 
fore could  not  be  supposed  to  have  the  same 
knowledge  of  the  bonds,  being  paid  or  not,  as 
if  it  had  been  his  own  debt.  If  payment  had 
been  made,  it  would  probably  have  been  by 
Martin,  the  principal  debtor."  And  see  fur- 
ther, on  this  subject,  Farnum  v.  Eastwick, 
2  Am.  L.  Reg.  572,  overruling  Zents's  Exrs. 
V.  Heart,  8  Pa.  St.  R.  .341  ;  in  which  last- 
mentioned  case  it  was  decided,  that  if  the 
liability  of  one  joint-promisor,  between  whom 
the  relation  of  principal  and  surety  subsists, 
has  been  destroyed,  an  acknowledgment  by 
the  other  will  revive  it ;  and  see  Watts  v. 
Deavor,  1  Grant's  Cases,  267  ;  Carlton  v. 
Ludlow  Woollen  Mill,  27  Vt.  R.  496  :  Barger 
V.  Durvin,  22  Barb.  R.  68. 

That  the  law  of  contribution  between  joint 
sureties,  is  the  same  as  that  stated  in  the  text, 
see  the  following  American  authorities  :  Stick- 
el  V.  Stickel,  28  Pa.  St.  R.  233  ;  Common- 
wealth r.  Cox's  Admrs.,  36  Id.  442;  Steele 
V.  Mealing,  24  Ala.  R.  284  ;  Cutler  zj.  Emery, 
37  N.  H.  R.  567  ;  Miller  v.  Sawyer,  30  Vt. 
R.  412  ;  Kelly  v.  Page,  7  Gray's  R.  213  ; 
Paulin  V.  Kaighn,  3  Dutch.  R.  503  ;  Leary  v. 
Cheshire,  3  Jones's  Eq.  R.  170;  Paulin  v. 
Kaighn,  5  Dutch.  R.  480. 


OF   DEBTS.  197 

to  the  payment  of  the  whole  debt.(6)  But  if  the  surety  has  paid 
no  more  than  his  own  proportion  of  the  debt  he  cannot  obtain 
contribution  from  any  of  the  others ;(/)  nor  will  contribution  be 
allowed  when  the  suretyship  of  one  person  is  a  distinct  transac- 
tion from  that  of  the  others.(^)  A  surety,  however,  may  be  dis- 
charged from  his  liability  by  the  conduct  of  the  creditor.  As 
surety  he  has  made  himself  liable  only  for  the  payment  of  a  par- 
ticular debt  at  a  given  time,  or  under  certain  given  circumstances. 
If  therefore  the  creditor,  by  any  subsequent  arrangement  with 
the  principal  debtor,  preclude  himself  from  demanding  payment 
of  his  debt  at  the  time  or  under  the  circumstances  originally 
agreed  on,  the  surety  will  be  at  once  discharged  from  all  lia- 
bility.(A)  Thus  if  the  creditor  bind  himself  to  give  further  time 
for  payment  to  the  principal  debtor,(^)  or  compound  with  him, 
without  expressly  reserving  his  remedy  against  the  surety ,(j)  the 
surety  will  be  discharged.  But  the  *acceptance  by  the  [-^-,-4,-,-. 
creditor  from  the  principal  debtor  of  a  new  and  inde-  ^  -' 
pendent  security  for  the  debt  will  not  discharge  the  surety.(A;) 
Neither  will  the  surety  be  discharged  by  the  mere  neglect  of  the 
creditor  to  enforce  payment  of  the  debt  from  the  principal  debtor 
at  the  time  of  its  becoming  due  •,{l)  nor  by  the  creditor's  express 
agreement  to  give  time  to  the  principal  debtor,  if  such  agree- 
ment fail  in  any  of  the  requisites  of  a  binding  contract.(m) 

We  now  approach  the  subject  of  the  alienation  of  debts,  to 
which  some  reference  has  already  been  made.     "We  have  seen  that 

(e)   Peter  v.  Rich.  1  Cha.  Rep.  .34  ;    Hitchman  v.  Stewart,  3  Drewry,  271. 

(/)  Ex  parte  Cxifford,  6  Ves.  807  ;  Davies  v.  Humphreys,  6  Mee.  &  Wels.  163,  168,  169. 

{g)  Coope  V.  Twyman,  T.  &  Russ  426  ;  Craythorne  v.  Swinburne,  14  Ves.  160  ;  Pendle- 
bury  V.  Wallier,  4  You.  &  Coll.  424. 

(A)  Calvert  v.  London  Dock  Company,  2  Keen,  638  ;  Heath  v.  Key,  1  Y.  &  Jerv.  434  ; 
Nicholson  v.  Revill,  4  Ad.  &  Ell.  675,  683,  E.  C.  L.  R.  vol.  31 ;  Blake  v.  White,  1  You.  & 
Coll.  420  ;  Bowser  v.  Cox,  4  Beav.  879  ;  6  Beav.  110  ;  and  see  Squire  v.  Whitton,  1  H.  of 
L.  Cases,  333. 

(i)  Samuel  v.  Ilowarth,  3  Meriv.  272  :  Eyre  v.  Bartrop,  3  Madd.  221  ;  Moss  v.  Hall,  5 
Ex.  Rep.  46  ;  Davies  v.  Stainbank,  6  De  Gex,  M.  &  G.  679. 

0)  Ex  parte  Gifford,  6  Ves.  807;  Ex  parte  Carstairs,  Buck,  660;  Maltby  v.  Carstairs,  7 
Bar.  &  Cress.  737,  E.  C.  L.  R.  vol.  14  ;  S.  C.  1  Man.  &  Ry.  649  ;  Thompson  v.  Lack,  3  C. 
B.  540,  E.  C.  L.  R.  vol.  64 ;  Owen  v.  Iloman,  4  House  of  Lords  Cases,  997 ;  Close  v.  Close, 
4  De  Gex,  M.  &  G.  176  ;  Webb  v.  Hewitt,  3  Kay  &  John.  438. 

U-)   Bell  V.  Banks,  3  Man.  &  Gr.  258,  E.  C.  L.  R.  vol.  42. 

(/)   Eyre  v.  Everett,  2  Russ,  381  ;   Peel  v.  Tatlock,  1  B.  &  P.  419. 

{m)  Philpot  V.  Briant,  4  Bing.  717,  E.  C.  L.  R.  vol.  13;  Tucker  v.  Laing,  2  Kay  & 
John.  745. 


198 


OF   CHOSES   IN    ACTION. 


a  debt  was  anciently  considered  as  a  mere  right  to  bring  an  action 
against  the  debtor,  and  as  such  was  incapable  of  being  trans- 
ferred.(??)  In  process  of  time,  however,  an  assignment  of  a  debt 
was  permitted  to  take  place  by  means  of  an  authority  from  the 
creditor  to  his  assic:ncc  to  sue  the  debtor  in  the  creditor's  name. 
This  authority  is  usually  called  a  jjoivcr  of  attorney,  which  need  not 
be  by  deed,  but  may  be  by  writing  unsealed,(o)  or  even  by  pa- 
rol ;(^)  and  when  a  debt  is  a  legal  debt,  recoverable  only  in  a  court 
of  law,  it  cannot  be  effectually  assigned  without  such  a  power. 
The  assignment  of  debts  by  means  of  powers  of  attorney  is  now 
recognized  and  protected  by  the  courts  of  law.^  Thus  in  a  case 
where  the  original  creditor  became  bankrupt  after  he  had  assigned 


(»)   A//fe,  p.  4. 

(o)  Howell  v.  Mclvers,  4  T.  R.  690. 


(p)  Heath  V.  Hall,  4  Taunt.  326. 


1  But  that  such  a  power  will  not  be  effec- 
tual, in  case  of  the  death  of  the  grantor  of  the 
power,  see  Hunt  v.  Rousmanier,  8  Wheat.  R. 
174,  and  1  Pet.  S.  C.  R.  1.  The  defendant, 
Rousmanier,  executed  to  the  plaintiff  a  power 
of  attorney,  authorizing  him  to  make  and 
execute  a  bill  of  sale  of  three-fourths  of  the 
vessels,  Nereus  and  Industry,  to  himself  or 
to  any  other  person,  and  in  the  event  of  their 
being  lost,  to  collect  the  money  which  should 
become  due,  under  a  policy  upon  them,  and 
their  freight  ;  and  in  the  power  of  attorney 
it  was  recited,  that  it  was  given  as  collateral 
security  for  the  payment  of  certain  notes,  and 
was  to  be  void  on  their  payment ;  subsequent- 
ly, Rousmanier  died,  and,  on  the  return  of 
the  vessels,  they  being  taken  possession  of  by 
the  plaintiff,  and  the  interest  of  the  intestate 
in  them  offered  for  sale,  the  defendant's  credi- 
tors forbade  the  sale,  and  this  bill  was  brought 
to  compel  them  to  join.  There  was  some  evi- 
dence that  the  power  had  been  given  in  place 
of  a  mortgage.  At  the  first  decision  of  this 
case.  Chief  Justice  Marshall,  remarks,  "The 
general  rule  ...  is,  that  a  letter  of  attor- 
ney may,  at  any  time,  be  revoked  by  the 
party  who  makes  it  ;  and  is  revoked  by  his 
death.  But  this  general  rule,  which  results 
from  the  nature  of  the  act,  has  sustained 
some  modification.  Where  a  letter  of  attor- 
ney forms  a  part  of  a  contract,  and  is  a  secur- 
ity for  money,  or  for  the  performance  of  any 
act  which  is  deemed  valuable,  it  is  generally 


made  irrevocable  in  terms,  or  if  not  so,  is 
deemed  irrevocable  in  law.  .  .  Rousma- 
nier, therefore,  could  not,  during  his  life,  by 
any  act  of  his  own,  have  revoked  this  letter 
of  attorney.  But  does  it  retain  its  efiBcacy 
after  his  death?  We  think  it  does  not.  We 
think  it  well  settled,  that  a  power  of  attorney, 
though  irrevocable  during  the  life  of  the  party, 
becomes  extinct  by  his  death.  .  .  .  This 
general  doctrine,  that  a  power  must  be  exe- 
cuted in  the  name  of  a  person  who  gives  it,  a 
doctrine  founded  on  the  nature  of  the  trans- 
action, is  most  usually  ingrafted  in  the  power 
itself.  Its  usual  langu.age  is,  that  the  substi- 
tute shall  do  that  which  he  is  empowered  to  do, 
inthename  of  hispritLcipnl.  .  .  .  This  gen- 
eral rule,  that  a  power  ceases  with  the  life  of 
the  person  giving  it,  admits  of  one  exception. 
If  a  power  be  coupled  with  an  interest,  it  sur- 
vives the  person  giving  it,  and  may  be  execu- 
ted   after  his  death It  is,      .     . 

deemed  perfectly  clear,  that  the  power  given 
in  this  case,  is  a  naked  power,  not  coupled 
with  an  interest,  which,  though  irrevocable 
by  Rousmanier  himself,  expired  on  hisdeath," 
And  in  the  same  case,  reported  in  1  Pet.  S. 
C.  R.  1,  upon  the  question  whether  equity 
would  grant  relief,  it  was  decided  it  would 
not.  Judge  Washington  delivering  the  opinion 
of  the  court.  See  also  on  this  subject,  Mich- 
igan Ins.  Co.  V.  Levenworth,  30  Vt.  R.  1]  ; 
Saltmarsh  v.  Smith,  32  Ala.  R.  404  ;  Hart- 
shorn V.  Day,  19  How.  U.  S.  R.  211. 


OF   DEBTS.  199 

his  debt,  it  was  held  that  an  action  against  the  debtor  might  still 
be  properly  brought  in  the  name  of  *such  original  creditor,  ^ 
by  virtue  of  the  power  of  attorney  which  he  had  given  to  ■-  ^ 
his  assignee ;  although,  if  no  assignment  had  been  made,  the  as- 
signees of  the  creditor  under  the  bankruptcy  would  have  been  the 
proper  parties  to  sue.(^)  So  if  a  power  of  attorney  be  given  on  an 
assignment  of  a  debt  for  a  valuable  consideration,  it  is  held  to  be 
irrevocable  by  the  assignor.(?')  Wlien  a  debt  or  demand  is  equitable 
only,  that  is  of  a  nature  to  be  recoverable  only  in  the  Court  of 
Chancery,  it  may  be  assigned  without  a  power  of  attorney  ;  for 
equity  will  allow  the  assignee  to  sue  in  his  own  name  ;  and  it  is  to 
be  hoped  that  the  privilege  may  one  day  be  extended  by  Parliament 
to  the  assignee  of  a  legal  debt.  When  a  debt  is  assigned,  the  title 
of  the  assignee  is  not  complete  until  he  has  given  to  the  debtor 
notice  of  the  assignment  ;(.*)  for  the  debtor,  if  he  has  had  no  notice 
of  the  assignment,  may  lawfully  pay  his  debt  to  the  original  creditor, 
and  will  be  effectually  discharged  by  his  receipt. 

Bills  of  exchange  and  promissoiy  notes  are,  as  we  have  already 
8een,(/)  exceptions  to  the  rule  which  requires  a  power  of  attorney 
to  enable  the  assignee  to  sue  the  debtor  for  the  debt  assigned. 
The  custom  of  merchants  was  in  ancient  times  sufficiently  powerful 
to  countervail  in  this  respect  the  strictnesss  of  the  common  law, 
and  the  holder  of  a  bill  of  exchange  was  able  to  sue  upon  it  in  his 
own  name.  By  a  statute  of  Anne,(i^)  promissory  notes  were  made 
assignable  or  indorsable  over  in  the  same  manner  as  inland  bills 
of  exchange  might  be  according  to  the  custom  of  merchants. 

*Debts,  being  formerly  considered  as  mere  rights  of   r-Hi-,o-] 
action,  could  not  be  taken  in  execution  on  a  judgment 
obtained  against  the  creditor.     But  when  they  are  secured  by 
some  check,  bill,  note,  bond,  specialty,  or  other  security,(x)  the 
act  for  extending  the  remedies  of  creditors  against  the  property 

(fj)  Winch  V.  Keeley,  1  T.  R.  619,  Parnham  v.  Hurst,  8  Mee.  &  Wels.  743.  See  De 
Pothonier  v.  De  Mattos,  1  E.  B.  &  E.  461,  E.  C.  L.  R.  vol.  96. 

(r)   Walsh  v.  Whituomb,  2  Esp.  565. 

(s)   See  jjost,  the  chapter  on  Title. 

(t)   Ante,  p.  4. 

(i<)   Stat.  .3  &  4  Anne,  c.  9,  mude  perpetual  by  stat.  7  Anne,  c.  25,  .3. 

(a)  Harrison  v.  Paynter,  6  Mee.  &  Wels.  387;  Wood  v.  Wood,  4  Q.  B.  397,  E.  0.  L.  R. 
vol.  45. 


200 


OF    CHOSES   IN   ACTION. 


of  debtors(//)  provides  that  under  the  writ  of  fieri  facias{z)  the 
sheriif  may  seize  not  only  money  and  bank  notes,  but  also  the 
securities  above  mentioned,  and  may  sue  upon  them  in  his  own 
name  on  the  arrival  of  the  time  of  payment;  but  the  sheriff  is 
not  bound  to  sue  unless  indemnified  in  the  manner  prescribed  by 
the  acts  from  the  costs  of  the  action.'  And  the  Common  Law 
Procedure  Act,  1854,  now  enables  the  court  or  a  judge  to  order 
the  examination  of  any  judgment  debtor  as  to  any  and  what 
debts  are  owing  to  him  ;(a)  and  a  judge  may,  on  the  application 
of  the  judgment  creditor,  either  before  or  after  such  examination, 
order  that  all  debts  owing  from  any  third  person  (in  the  act  called 


(y)   Stat.  1  &  2  Vict.  c.  110,  s.  12. 
(2)  See  a7ite,  p.  4S. 


(a)   Stat.  17  &  18  Vict.  c.  125,  s.  60. 


1  In  the  United  States,  this  subject  is  regu- 
lated by  the  legislative  provisions  of  the  sev- 
eral States.  And  not  only  may  a  debt  due  to 
a  defendant,  be  taken  in  satisfaction  of  his 
debt  to  the  plaintiff,  by  an  attachment  in  the 
nature  of  an  execution  ;  but  a  debt  may  also 
be  attached,  by  process  of  foreign  attachment, 
as  a  means  of  compelling  an  appearance  on 
the  part  of  a  non-resident  defendant,  or  by  do- 
mestic attachment,  vphich  is  of  the  general  na- 
ture of  a  proceeding  in  bankruptcy.  On  the 
subjects,  of  foreign  attachment,  domestic  at- 
tachment, or  attachment  in  the  nature  of  exe- 
cution, seethe  following  cases  :  Bostwick  etal 
V.  Beach,  18  Ala.  R.  80  ;  Lawrence  i;.  Sturdi- 
vent,  5Eng.  R.  1-30;  The  Stamford  Bank  v. 
Ferris,  17  Conn.  R.  259  ;  Davenport  v.  Lacon, 
Id.  278  ;  Fitch  v.  Waite,  5  Id.  117  ;  Grosveuor 
V.  The  Farmers'  and  Mechanics'  Bank,  13  Id. 
107  ;  Insurance  Co.  v.  Weeks  et  al.,  7  Mass. 
R.  4.38  ;  Perry  v.  Coates  et  al.,  9  Mass.  R. 
537  ;  Andrews  v.  Ludlow  et  al.,  5  Pick.  R.  28  ; 
Lupton  V.  Cutler  et  al.,  8  Id.  298  ;  Jackson 
V.  Willard,  4  Johns,  R.  40  ;  Denton  et  al.  v. 
Livingston  et  al.,  9  Id.  96  ;  Hardy  v.  Dobbin, 
12  Id.  220  ;  Mann  v.  The  Exrs.  of  Mann,  1 
Johns.  Oh.  R.  231  ;  Spencer  v.  Blaisdell,  4  N. 
H.  R.  196  ;  Insurance  Co  v.  Piatt,  5  Id.  193  ; 
Rundlett  v.  Jordan,  3  Greenlf.  R.  47;  Bel- 
cher V.  Grubb,  4  Barring.  R.  461  ;  Willis  & 
Co.  V.  Parsons  &  Co.,  13  Geo.  R.  339  ;  Hodson 
et  al.  v.McConnel,  12.111.  R.  172;  Reinhard 
V.  Keith,  3  Ind.  R.  137  ;  Burgess  v.  Clark, 
Id.  250  :  Wil.'^on  v.  Albright,  2  Iowa  R.  125  ; 
Harlan  v.   Moiiarty,    Id.    486  ;    Cornett   v. 


Doolittle,  Id.  385  ;  Weather  v.  Mudd,  12  B. 
Mon.  R.  112  ;  Woodruff  &  Co.  v.  French  &  Co. 
et  al.,  6  La.  R.  62;  Estell  v.  Goodloe, 
Id.  122 ;  Bird  v.  Cain  et  al..  Id.  248  ; 
Walker  v.  Curvey,  Id.  535  ;  Shatter  v.  Tiernan 
&  Co.,  Id.  567  ;  Lumbden  v.  Bourie,  2  Md. 
R.  324  ;  Barr,  garnishee,  v.  Perry,  3  Gill's  R. 
313  ;  Webb  v.  Miller  et  al.,  24  Missi.  R.  638  ; 
Ridley  v.  Ridley,  Id.  648  ;  Gallis  v.  Kirby,  13 
Misso.  R.  157  ;  Wood  v.  Edgar,  Id.  451 ; 
Temple  v.  Cochran,  Id.  116  ;  Hanness  v. 
Bonnell,  3  Zabr.  R.  159  ;  Castner  v.  Styer  et 
al.,  Id.  236  ;  Bracken  v.  Ballentine,  1  Har- 
rison's R.  484  ;  Anderson  v.  Douk,  10  Ired. 
L.  R.  295 ;  Arrington  v.  Screws,  9  Id.  42  ; 
Myers  V.  Beeman,  Id.  116  ;  Weaver  v.  Russel 
et  al.,  18  0.  R.  497;  Lessee  of  Cochran's 
Heirs,  v.  Loring,  17  Id.  409  ;  Fuller  v.  Bryan, 
20  Pa.  St.  R.  144  ;  Sheetz  v.  Hobensack,  Id. 
412  ;  Nichols  v.  Sehofield,  2  R.  I.  R.  123  ;  Ar- 
nold V.  Frazier,  5  Strobh.  L.  R.  33 ;  Lindau 
V.  Arnold,  4  Id.  290  ;  Kincaid  v.  Neall,  3  Mc- 
Cord's  R.  201  ;  Wiggins  v.  Anderson,  1  Tex. 
R.  73  ;  Merritt  et  al.  v.  Clow,  2  Id.  582  ; 
Davis  et  al.  v.  Clayton  et  al.,  5  Hump.  R.  446  ; 
Nolen  V.  Crook,  5  Id.  312  ;  Hogshead  v.  Car- 
ruth,  5  Yerg.  R.  227  ;  Gibbs  et  al.  v.  Bour- 
land,  6  Id.  481  ;  The  Brandon  Iron  Co.  v. 
Cleason,  24  Vt.  R.  228  ;  Goodrich  v.  Church, 
20  Vt.  R.  187  ;  Carrington  et  al.  v.  Didier  et 
al.,  8  Graft  R.  260  ;  Sehofield  v.  Cox  etal., 
Id.  533  ;  McCheury  &  Co.  v.  Jackson,  6  Id. 
96  ;  Memphis  R.  R.  Co.  v.  Wilcox,  48  Pa.  St. 
R.  161 J  Coe  V.  Wilson,  46  Maine  R.  314. 


OF   DEBTS.  201 

the  garnishee)  to  the  judgment  debtor  shall  be  attached  to  an- 
swer the  judgment  debt.(6)  And  payment  made  by  the  gar- 
nishee, or  execution  levied  upon  him  under  the  provisions  of  the 
act,  for  the  amount  of  his  debt,  is  a  valid  discharge  to  him  as 
against  the  judgment  debtor  to  the  amount  paid  or  levied,  al- 
though such  proceedings  may  be  set  aside,  or  the  judgment  re- 
versed.(c)  And  the  Common  Law  Procedure  Act,  1860,  further 
provides  that  if  it  be  suggested  by  the  garnishee  that  the  debt 
sought  to  be  attached  belongs  to  some  third  person  who  has  a 
lien  or  charge  npon  it,  the  judge  may  order  such  third  person  to 
appear  before  him,  and  may  order  execution  to  issue  to  levy  the 
amount  *due  from  such  garnishee,  or  the  judgment  cred-  ^:^1 -14^-1 
itor  to  proceed  against  the  garnishee;  and  he  may  bar 
the  claim  of  such  third  person,  or  make  such  other  order  as  he 
shall  think  just.(c?) 

In  the  event  of  bankruptcy,  the  assignees  of  the  bankrupt  are 
empowered  to  sue  for  debts  owing  to  him  in  their  own  names  for 
the  benefit  of  his  creditors. (e) 

We  have  now  to  consider  the  payment  of  debts.  And,  in  the' 
first  place,  the  payment  of  a  smaller  sum  is  no  satisfaction  of  a 
larger  one,  unless  there  be  some  consideration  for  the  relinquish- 
ment of  the  residue, (/)  such  as  the  payment  at  an  earlier  time 
than  the  whole  is  due,(^)  or  the  concurrence  of  some(/<)  or  all  of 
the  other  creditors  of  the  debtor  in  accepting  a  composition. (i)^ 

{b)  Ibid.  s.  61. 

(c)  Stat.  17  &  18  Vict.  c.  125,  s.  65.  See  Holmes  v.  Tutton,  5  E.  &  B.  65,  E.  C.  L.  R. 
vol.  85. 

(d)  Stat.  2.3  &  24  Vict.  c.  126,  ss.  28-31. 

(e)  Stat.  12  &  13  Vict.  c.  106,  s.  141.  repealing  stats.  6  Geo.  IV,  c.  16,  s.  63,  and  1  &  2 
Will.  IV,  c.  56,  s.  25.  And  see  stat.  15  &  16  Vict.  c.  76,  s.  142,  as  to  the  bankruptcy  of  a 
plaintiff  in  an  action  at  law. 

(/)   Cumber  v.  Wane,   1  Strange,  425  ;  S.   C.    1  Smith's  Leading  Cases,   146  ;  Fitch  v. 
Sutton,  5  East,  230. 
(g)  Co.  Litt.  212  b. 

(h)  Norman  v.  Thompson,  4  Ex.  Rep.  755. 
(t)   Reay  v.  Richardson,  2  Cro.  Mee.  &  Rose.  422;  Pfleger  v.  Browne,  28  Bear.  391. 


1  It  is  a  technical  rule  of  law,  that  the  Leaman   et  al.,  9  Johns.   R.   333;  Harrison 

giving  of  a  less   sum  of  money  for  a  debt  of  v.  Wilcox  et  al.,  2  Id.  448  ;  Johnson  v.  Brun- 

greater  amount,  cannot  operate  in  satisfaction  nan,  5   Id.  268  ;   Seymour  t^.  Minturn,  17  Id. 

or  extinguishment    of  the  debt ;  Deterick    v.  169  ;  Latapee  v.  Pecholier,  2  AVash.  C.  C.  R. 


202 


OF   CHOSES    IN   ACTION. 


But  it  seems  that  tlie  acceptance  of  a  negotiable  security  for  a  small 
amount  may  be  a  good  satisfaction  for  a  larger  debt;(j)  and  the 

(j)   Sibree  v.  Tripp,  15  Mee.  &  Wels.  23. 


180  ;    White  v.   Jordan,  27   Maine  R.   370  ; 
Warren  v    Skinner,  20  Conn.  R.  559  ;  Eve  v. 
Moseley,  2  Strobh.  R.  203  ;  Gurley  v.  Hilts- 
hue,  5   Gill's  R.  218  ;  Spruneberger  v.  Dent- 
lee,  4  Wat.  R.  126  ;  Kellogg  et  al.  v.  Dumont 
et  al.,    14  Wend.  R.   116  ;  Brooks  et  al.  v. 
White,  2  Metcf.  R.  283  ;  Molyneaux  et  al.  v. 
Collier,  13  Geo.  R.  407  ;  Booth  v.  Campbell, 
15  Md.  R.  569  ;  and  so,  a  note  for  a  less  sum 
cannot  be  said  to  extinguish   one  of  greater 
value  ;  Canfield  v.    Ives,    18   Pick.   R.   253  ; 
Smith  V.  Bartholemew,  1  Metcf.  R.  276.    But, 
the  delivery  and  acceptance  of  some  collateral 
thing  in   satisfaction  of  a  debt,  will  be  con- 
strued a  valid  payment  ;  as  the  delivery  and 
acceptance  of  commodities  ;  Jones  v.  Bullett, 
2  Litt.  R.  49  ;  or,  of  the  promissory  note  of  a 
third  person  ;  Booth  v.  Smith,  3  Wend.  R.  66  ; 
N.   Y.   State   Bank    v.   Fletcher,    5  Id.  85  ; 
BuUen  et  al.  v.  McGillicuddy,  2  Dana's  R. 
90  ;  Pope  v.  Tunstall  et  al.,  3   Ark.  R.  209  ; 
James  et  al.  v  Hackley  et  al.,  16  Johns.  R. 
273  ;  Brown  v.  Jackson,  2  AVash.  C.  C.  R.  24  ; 
Tobey  v.  Barber,  5  Johns.  R.  68  ;  Johnson  v. 
Weedetal.,  9  Id.  310  ;  Roget  v.  Merritt  et  al., 
2  Gaines's  R.    117  ;  Van  Epps  v.   Dilleye,    6 
Barb.     Sup.    C.    R.    245 ;  Hays  v.    Stone,    7 
Hill's  R.  128  ;  Maze  v.  Miller,  1  Wash.  C.  C. 
R.  328;  Harris  et  al.  v.  Lindsay,  4  Id.  271  ; 
Peter  v.  Beverly,   10  Pet.  R.   534;  Glenn  v. 
Smith,  2  Gill   &  Johns.  R.  494  ;  Gordon  v. 
Price,  10  Ired.  R.    385  ;  Perit  et  al.  v.    Pit- 
fields    et  al.,   5    Raw.   R.  166  ;   McGuirn    v. 
Holmes,  2  Wat.  R.  121  ;  McLaughlin  v.  Bo- 
vard,  4  Id.    308;  Moore  v.  Briggs,  15    Ala. 
R.  24;  Fulford   v.  Johnston   et  al..  Id.   386; 
Frisbie  et  al.  v.  Larned  et.  al.,  21  Wend.  R. 
451  ;  Heidenheimer  v.  Lyon,  3  E.  D.  Smith's 
R.  54  ;    and  so,  of  services  rendered  by  the 
debtor,    or  real  or  personal   property  trans- 
ferred   to  the  creditor,   or  almost  anything 
which  the  creditor  shall  agree  to  receive  in 
satisfaction  ;    Blinn  v.    Chester,    5  Day's  R. 
359  ;  Watkinson  v.  Ingleby  et  al.,  5  Johns.  R. 
386  ;    Eaton  v.   Lincoln,   13   Mass.   R.   424  ; 
Musgrove,«.  Gibbs,  1  Dal.  R.  216;  Smith  v. 
Brown,  3  Hawks'    R.    580  ;  Brooks  et    al.  v. 


White,  2  Metcf.  R.  283  ;  Austin  v.  Dorwin 
21  Vt.  R.  39  ;  Spann  v.  Blatzell,  2  Fla.  R. 
302  ;  Milliken  et  al.  v.  Brown,  1  Raw.  R. 
391  ;  and  an  arrest  of  a  debtor  is  regarded  as 
payment  and  satisfaction  of  the  debt ;  Magniac 
V.  Thompson,  2  Am.  L.  Reg.  697. 

So  upon  the  principal  of  an  accord  and 
satisfaction,  where  an  agreement  is  made  be- 
tween the  parties,  whereby  some  advantage 
accrues  to  the  creditor,  detriment  to  the  debt- 
or, other  than  what  springs  out  of  the  original 
contract,  a  less  sum  may  be  received  in  satis- 
faction of  a  greater  ;  Milliken  et  al.  v.  Brown, 
1  Raw.  R.  391  ;  Molyneaux  et  al.  v.  Collier, 
13  Ga.  R.  407;  Hendersons.  Moore,5  Craneh's 
R.  11  ;  Rose  v.  Hall,  26  Conn.  R.  392  ;  Jones 
V.  Perkins,  29  Miss.  R.  129  ;  Fenwickv.  Phil- 
lips, 3  Metcf.  (K.  Y.)  R.  87  ;  or,  a  note  for  a 
less  sum,  extinguish  a  debt  of  greater  amount; 
Brooks  et  al.  v.  White,  2  Metcf.  R.  283  ;  Boyd 
et  al  V.  Hitchcock,  20  Johns.  R.  76  ;  Le  Page 
V.  McCrea,  1  Wend.  R.  164  ;  Kellogg  et  al. 
V.  Dumont  et  al.,  14  Id.  116  ;  Sanders  v.  The 
Branch  Bank,  13  Ala.  R.  353  ;  Webb  v.  Gold- 
smith, 2  Duer's  R.  416  ;  and  hence  it  follows, 
that  an  agreement  for  the  payment  of  a  sum 
certain,  instead  of  a  larger  and  unliquidated 
claim,  will  cancel  the  indebtedness  ;  McDan- 
iels  V.  Lapham  et  al.,  21  Vt.  R.  223;  Lamb 
V.  Goodwin,  10  Ired.  R.  320  ;  and  the  accept- 
ance of  the  note  of  one  of  the  partners  of  a 
firm,  for  the  debt  of  a  firm,  is  valid  as  an  ac- 
cord and  satisfaction  ;  Sheeby  v.  Mandeville 
et  al.,  6  Craneh's  R.  253  ;  Est.  of  Davis  t'. 
Desauque,  5  Whart.  R.  531  :  Muldon  v.  Whit- 
lock,  1  Cow.  R.  290  ;  Parker  v.  Cousins,  2 
Gratt.  R.  373  ;  Mason  v.  Wickersham,  4  Wat. 
&  Serg.  R.  100  ;  Arnold  v.  Camp,  12  Johns. 
R.  409  ;  James  v.  Hackley,  16  Id.  273  ;  Har- 
ris et  al.  V.  Lindsay,  4  Wash.  C.  C.  R.  271  ; 
Wildes  et  al.  v.  Fessenden  et  al.,  4  Metcf. 
R.  12  ;  Livingston  v.  Radcliff,  6  Barb.  Sup. 
C.  R.  202  ;  Van  Epps  v.  Dilleye,  Id.  245  ; 
Kinster  et  al.  v.  Pope,  5  Strobh.  R.  126; 
Benneson  v.  Thayer,  23  111.  R.  374  ;  Pierce 
V.  Pierce,  25  Barb.  R.  243  ;  Stephens  v. 
Thompson,  28  Vt.  R.  77.     But  in  all  cases  of 


OF   DEBTS. 


203 


payment  of  a  small  sum  may  be  a  good  satisfaction  for  an  un- 
liquidated demand  for  large  pecuniary  damages,  on  account  of 


accord  and  satisfaction,  the  consideration 
therefor,  must  be  either  good  or  valuable  ; 
Keeler  v.  Neal,  4  Wat.  R  424  ;  Davis  v. 
Noaks,  3  J.  J.  Marsh.  R.  494;  Commonwealth 
for  the  use,  &c.,  v.  Miller,  5  Mon.  R.  205  ; 
Nave  V.  Fletcher,  4  Litt.  R.  242;  Buddicum  v. 
Kirk,  3  Cranch's  R.  293. 

An  accord,  however,  without  a  satisfaction, 
is  of  no  efficacy,  and  hence  an  agreement 
for  an  accord,  will  not  be  binding,  unless  exe- 
cuted ;  Williams  v.  Stanton,  1  Root's  R.  426  ; 
Pope  V.  Tunstale  et  al.,  3  Ark.  R.  209  ;  Lin- 
ard  V.  Patterson,  3  Blackf.  R.  354  ;  Maze  v. 
Miller,  1  Wash.  C.  C  R.  328  ;  Morris  Canal 
V.  Van  Vorst,  1  Zabr.  R.  101  ;  Russell  v.  Ly- 
tic, 6  Wend.  R.  390  ;  Hawley  v.  Foot,  19  Id. 
616  ;  Brooklyn  Bank  v.  De  Grann  et  al.,  23 
Id.  342  ;  Anderson  v.  The  Highland  Turnpike 
Co.,  16  Johns.  R.  86  ;  Evans  v.  Wells,  22 
Wend.  R.  325  ;  Eaton  v.  Lincoln,  13  Mass. 
R.  424  ;  Seamen  v.  Haskins,  2  Johns.  Cas. 
195  ;  Phillips  V.  Berger,  2  Barb.  Supe.  C.  R. 
609  ;  Sprunebergeri.'.  Dentler,  4  Wat.  R.  126  ; 
Rising  V.  Patterson,  5  Whart.  R.  316  ;  Dan- 
iels V.  Hatchet  al.,  1  Zabr.  R.  391  ;  Hart «. 
Bailie,  16  Serg.  &  Raw.  R.  162  ;  Weakley  v. 
Bell,  9  Wat.  R.  280  ;  Phelps  v.  Johnson,  8 
Johns.  R.  58  ;  Gregory  v.  Thomas,  2  Wend.  R. 

47  ;  Gallagher's  Exrs.  v.  Roberts,  2  Wash.  C. 
C.  R.  191 ;  Hearn  v.  Kiehl,  38  Pa.  St.  R.  147; 
but  if,  by  agreement,  an  executory  obligation 
be  entered  into,  in  lieu  of  payment,  it  will  be 
good  if  the  obligation  is  carried  out;  Kins- 
ler  et  al.  v.  Pope,  5  Strobh.  R.  126  ;  Spann 
V.  Blatzell,  2  Fla.  R.  302;  Morris  Canal  v. 
Van  Vorst,  1  Zabr.  R.  391  ;  Keen  v.  Vaughan, 

48  Pa.  St.  R.  477  ;  Cushing  v.  Wyman,  44 
Maine  R.  121  ;  Clark  v.  Bowen,  22  How.  U. 
S.  R.  270. 

Upon  the  question  whether  the  debtor's 
own  negotiable  note  can  be  taken  as  an  ac- 
cord and  satisfaction  of  Lis  debt,  the  authori- 
ties seem  to  be  conflicting  ;  in  New  York,  it 
has  been  held,  that  it  cannot  be  regarded 
as  a  satisfaction  of  the  debt,  even  upon  an 
express  agreement  of  the  parties  ;  Putnam  v. 
Lewis,  8  Johns.  R.  389  ;  Frisbie  v.  Lamed. 
21  Wend.  R.  450  ;  Myers  v.  Wells,  5  Hill's 
R.  463;  Cole  v.  Sackett,  1  Hill's  (N.  Y.)  R. 


517;  but,  in  Pennsylvania,  Connecticut,  and 
New  Hampshire,  the  law  is  to  the  contrary  ; 
Dougal  V.  Cowles  et  al.,  5  Day's  R.  511  ; 
Darlington  v.  Gray,  5  Whart.  R.  487  ;  Weak- 
ley V.  Bell  et  al.,  9  Wat.  R.  273  ;  Hays  v. 
Clurg,  4  Id.  452;  Jeffrey  v.  Cornish,  10  N. 
H.  R.  505  ;  Seltzer  v.  Coleman,  32  Pa.  St.  R. 
493.  With  a  like  clashing  of  authorities, 
some  of  the  eases  hold,  that  the  debtor's  own 
negotiable  note  cannot  be  regarded  as  pay- 
ment ;  Herring  v.  Sanger,  3  Johns.  Cas.  71  ; 
Johnson  v.  Weed,  9  Johns.  R.  310  ;  Olcott 
V.  Rathbone,  5  Wend.  R.  490  ;  Hays  v.  Stone, 
7  Hill's  R.  128;  Jeffrey  v.  Cornish,  10  N.  H. 
R.  505  ;  Elliott  V.  Sleeper,  2  Id.  625  ;  Maze 
V.  Miller,  1  Wash.  C.  C.  R.  328  ;  Gallagher's 
Exrs.  V.  Roberts,  2  Id.  191  ;  Harris  v.  Lind- 
say, 4  Id.  271  ;  Peter  v.  Beverly,  10  Pet.  R. 
532  ;  Schemerhorn  v.  Loines,  7  Johns.  R. 
311  ;  Gilead  v.  Smith,  2  Gill  &  Johns.  R. 
494 ;  Bito  V.  Porter,  9  Conn.  R.  23  ;  Perit 
V.  Pitfield,  5  Raw.  R.  166  ;  Tyson  v.  Pollock, 
1  Penna.  R.  375  ;  McGinn  v.  Holmes,  2  Wat. 
R.  121;  Risley  v.  Buchanan,  5  Id.  118; 
McLughan  t'.  Bovard,  4  Id.  308  ;  Costello  v. 
Cave,  2  Hill's  (S.  C.)  R.  628  ;  Chesturn  v. 
Johnson,  2  Bailey's  R.  574 ;  Prescott  v. 
Hubbell,  1  McCord's  R.  94;  Spear  v.  At- 
kinson, 1  Ired.  R.  262  ;  Watson  v.  Owens,  1 
Richard.  R.  Ill  ;  Weed  v.  Snow,  3  McL.  R. 
262  ;  Gardiner  v.  Gorham,  1  Doug.  R.  507  ; 
Steamboat  Charlotte  v.  Hammond,  9  Misso. 
R.  69  ;  McCrary  v.  Carrington,  35  Ala.  R. 
698;  Blunt  v.  Walker,  11  Wis.  R.  334; 
while  others  support  the  principle  that,  the 
legal  presumption,  if  uncontradicted,  is,  that 
the  note  was  intended  as  a  payment  for  the 
debt,  for  otherwise  the  debtor  might  be  com- 
pelled to  pay  his  debt  twice ;  Johnson  v. 
Johnson,  11  Mass.  R.  359  ;  Thatcher  et  al. 
V.  Dinsmore,  5  Id.  299  ;  Varner  v.  The  In- 
habitants of  Nobleborough,  2  Greenlf.  R. 
121  ;  Butts  V.  Dean,  2  Metcf.  R.  76  ;  Wal- 
lace V.  Agry  et  al.,  5  Mason's  R.  327  ;  Des- 
eandilla  et  al.  v.  Harris,  8  Greenlf.  R.  298  ; 
Il'sley  V.  Jewett,  2  Metcf.  R.  168  ;  Holmes  v. 
De  Camp,  1  Johns.  R.  34  ;  Pintard  v.  Tack- 
ington,  10  Id.  104  ;  Maneely  v.  MeGee,  6 
Mass.    R.   143;  Reed  v.   Upton,  10  Pick.  R. 


204 


OF    CHOSES   IN    ACTION. 


the  uncertainty  of  such  a  claim. (/.)     Wlien  a  less  sum  is  paid  to 

(/.-)  Wilkinson  v.  Byers,  1  Ad.  &  Ell.  106,  E.  C.  L.  R.  vol.  28. 


622;  Jones  v.  Kennedy,  11  Id.  125;  Wat- 
kins  V.  Hill,  8  Id.  522  ;  Cummings  v.  Hack- 
ley,  8  Johns.  R.  202  ;  Comstock  v.  Smith,  10 
Sbepl.  R.  202  ;  Dogan  v.  Ashbey,  1  Richard. 
R.  36  ;  Fowler  v.  Bush,  21  Pick.  R.  230 ; 
French  v.  Price,  24  Id.  13  ;  Hutohins  v.  01- 
cott.  4  Vt.  R.  549  ;  Torrey  v.  Baxter,  13  Id. 
452  ;  Homes  v.  Smith,  16  Maine  R.  177  ; 
Wise  V.  Hilton,  4  Id.  435  ;  Curtis  v.  Hubbard, 
9  Metcf.  R.  322  ;  Gilmore  v.  Bussy,  12  Id. 
418  ;  Follett  v.  Smith,  16  Vt.  R.  30  ;  Thorn- 
ton V.  Williams,  14  Ind.  R.  418  ;  Smalley  v. 
Edey,  19  111.  R.  207  ;  Wait  v.  Brewster,  31 
Vt.  R.  516  ;  Robertson  v.  Branch,  3  Sneed's 
R.,  506  ;  but  where  the  note  has  been  nego- 
tiated by  the  creditor,  no  action  can  be 
brought  on  the  original  debt,  unless  the  note 
is  produced,  or  accounted  for  ;  Small  v.  Jones, 
8  Wat.  R.  265  ;  Hughes  v.  Wheeler,  8  Cow. 
R.  77  ;  Dayton  v.  Trull,  23  Wend.  R.  345  ; 
Hays  V.  McClnng,  4  Wat.  R.  452  ;  Harris  v. 
Johnston,  3  Cranch's  R.  311;  MeConnell  et 
al.  V.  Stettinius  et  al.,  2  Gilm.  R.  707  ;  Cocke 
V.  Chancy,  Admr.,  14  Ala.  R.  65  ;  Spear  v. 
Atkinson,  1  Ired.  R.  262  ;  Shaw  v.  Gorkin, 
7  N.  H.  R  16  ;  Holmes  v.  DeCamp,  1  Johns. 
R.  34;  Burdickv.  Given,  15  Id.  247;  Humph- 
reys V.  Wheeler,  8  Cow.  R.  77  ;  Bite  v.  Por- 
ter, 9  Conn.  R.  23  ;  Street  v.  Hall,  29  Vt. 
R.  165. 

The  New  York  cases  of  Cumming  v.  Hack- 
ley,  8  Johns.  R.  202,  Tobey  v.  Barber,  5  Id. 
68,  and  Hour  v.  Clute,  15  Id.  224,  which 
seem  to  lead  to  the  conclusion,  that  a  creditor 
may,  by  agreement,  receive  the  debtor's  own 
security,  not  negotiable,  in  satisfaction  of  the 
debt,  cannot  easily  be  reconciled  with  the 
decisions  in  Putnam  v.  Lewis,  8  Johns.  R. 
389,  Frisbie  v.  Lamed,  21  Wend.  R.  450, 
Myers  v.  Welles,  5  Hill's  R.  463,  and  Cole  v. 
Sockett,  1  Hill's  (N.  Y.)  R.  617,  before  re- 
ferred to. 

But  the  mere  taking  of  securities  for.a  pre- 
existing debt,  does  not  thereby  release  the 
original  obligation,  unless  there  be  an  agree- 
ment to  accept  the  new  securities  in  sat- 
isfaction of  the  prior  indebtedness  ;  Pitts- 
burg &  Connellsville  R.  R.  Co.  V.  Clarke,  29 
Pa.   St.  R.   146  ;  Torry  v.  Hadley,  27  Barb. 


R.  192  ;  it  is  a  question  of  fact,  whether  such 
securities  are  to  be  regarded  as  payment,  or 
collateral  security;  Sellers  v.  Jones,  22  Pa. 
St.  R.  425  ;  Dickinson  v.  King,  28  Vt.  R. 
378. 

A  check,  which  has  been  taken  as  payment, 
will  cancel  the  debt  ;  Barnard  v.  Graves,  16 
Pick.  R.  41  ;  Dennie  v.  Hart,  2  Id.  204 ; 
Franklin  v.  Vanderpool,  1  Hall's  (N.  Y.)  R. 
78  ;  but  the  presumption  of  law  is,  that  a 
check,  is  onJy  payment,  when  realized  ;  Crom- 
well V.  Lovett,  1  Hall's  (N.  Y.)  R.  56  ;  The 
People  V.  Howell,  4  Johns.  R.  296  ;  Olcott  v. 
Rathbone,  5  Wend.  R.  490  ;  Downey,  Exr., 
V.  Hicks,  Exrx.  14  How.  R.  240  ;  Okie  v. 
Spencer,  2  Whart.  R.  253  ;  Mclntyre  v.  Ken- 
nedy, 31  Pa.  St.  R.  448;  and,  of  course,  a 
note  or  check  is  but  a  conditional  payment, 
when  it  is  expressed  to  be  in  full,  if,  or  when 
paid  ;  Herring  v.  Sanger,  3  Johns.  Cas.  71  ; 
Tyson  et  al.  v.  Pollock,  1  Penna.  R.  375  ; 
Chapman  v.  Steinmetz,  1  Dal.  R.  261  ;  Okie 
V.  Spencer,  2  AVhart.  R.  253 ;  Proctor  v.  Ma- 
ther, 3  B.  Mon.  R.  353. 

The  acceptance  of  a  higher  security  for  the 
same  debt,  will,  as  a  general  thing,  extinguish 
an  inferior  security  ;  Green  v.  Sarmiento,  1 
Pet.  C.  C.  R.  74  ;  Butler  v.  Miller.  1  Denio's 
R.  407  ;  Carson  V.  Monteiro,  2  Johns.  R.  308  ; 
Pleasants  i;.  Mengetal.,  1  Dal.  R.  380  ;  United 
States  V.  Price,  9  How.  R.  83  ;  Willings  et  al. 
V.  Consequa,  1  Pet.  C.  C.  R.  393  ;  Ward  v. 
Johnson,  13  Mass.  R.  140  ;  Robertson  v. 
Smith  et  al.,  18  Johns.  R.  459;  Peters  v. 
Sandford,  1  Denio's  R.  224  ;  Penny  t>.  Martin 
et  al.,  4  Johns.  Ch.  R.  566  ;  Averill  v.  Locks, 
6  Barb.  Sup.  C.  R.  20  ;  Sloo  v.  Lea,  18  0. 
R.  279  ;  Ferrall  et  al.  v.  Bradford,  2  Fla.  R. 
508  ;  Smith  et  al.  v.  Black,  9  Serg.  &,  Raw. 
R.  142  ;  Lewis  v.  Williams,  6  Whart.  R.  264  ; 
Anderson  v.  Levan,  1  Wat.  &  Serg.  R.  334  ; 
but,  both  the  securities  must  be  between  the 
same  parties;  Day  et  al.  v.  Seal  etal.,  14 
Johns.  R.  404  ;  Axers,  E.xrx.  v.  Mussehnan, 
2  Browne's  R.  11 ;  Beale  v.  The  Bank,  5 
AVat.  R.  629  ;  Wolf  v.  Wyeth,  11  Serg.  & 
Raw.  R.  149  ;  Davis  v.  Anable  et  al.,  2  Hill's 
(N.  Y.)  R.  339. 

And  in  all  cases  where  the  instrument  is 


OF   DEBTS.  205 

the  creditor  than  the  whole  amount  of  his  demands,  it  is  compe- 
tent to  the  debtor  to  make  the  payment  in  satisfaction  of  any  de- 
mand he  may  please,  and  the  creditor  must  appropriate  the  pay- 
ment accordingly  ;(^)  *but  if  the  payment  be  made  gener-  ^^^  ^ 
ally,  without  any  exjiress  appropriation,  the  creditor  may 
elect,  at  the  time  of  payment, (m)  or  within  a  reasonable  time 
after,(n)  to  appropriate  the  money  to  whichever  demand  he  may 
please.  And  if  no  election  as  to  the  appropriation  of  the  payment 
should  be  made  on  either  side,  the  law  will,  in  ordinary  cases  of 
current  accounts,  presume  that  the  first  item  on  the  debit  side  is 
discharged  or  reduced  by  the  first  payment  entered  on  the  credit 
side,  and  so  on  in  the  order  of  time.(o)^     When  the  debt  carries 

(/)  Shaw  V.  Picton,  4  Barn.  &  Cress.  715,  E.  C.  L.  R.  vol.  10;  Nash  v.  Hodgson,  Ld.  C. 
&  Lds.  Justices,  1  Jur.  N.  S.  946  ;  6  De  Gex,  M.  &  G.  474. 

(?«)   Devaynes  v.  Noble,  1  Mer.  604. 

(ii.)   Simson  v.  Ingham,  2  Barn.  &  Cress.  65,  E.  C.  L.  R.  vol.  9. 

(o)  1  Meriv.  608  j  Williams  v.  Rawlinson,  10  J.  B.  Moore,  362  ;  Merriman  v.  Ward,  1 
John.  &  H.  371. 

between  the  same  parties,  and  for  the  same  Serg.  R.  257  ;  Musgrove  v.  Gibbs,  1  Dal.  R. 
^um  as  the  former  security,  the  general  216  ;  Hacker  et  al.  «.  Perkins,  5  Whart.  R.  95; 
course  of  business,  as  well  as  the  presumption  Porter  v.  Talcot  et  al.,  1  Cow.  R.  359  ;  Bank  of 
of  fact,  would  seem  to  imply  that  the  more  the  Commonwealth  v.  Letcher,  3  J.  J.  Marsh. 
recent  security  extinguishes  the  older;  Slay-  R.  195  ;  Downey  v.  Hicks,  14  How.  R.  240. 
maker  v  Gundaeker's  Exrs.,  10  Serg.  &  Raw.  i  The  doctrine  stated  in  the  text,  is  the  law 
R.  75  ;  Bank  of  the  United  States  v.  Daniels,  of  this  country  ;  for  where  a  debtor,  being 
12  Pet.  R.  14  ;  Castleman  v.  Holmes,  4  J.  J.  liable  to  his  creditor  on  more  than  one  ac- 
Marsh.  R.  1 ;  Stewart's  Appeal,  3  Wat.  &  count,  makes  a  voluntary  partial  payment, 
Serg.  R.  476  ;  Frisbie  v.  Lamed,  21  Wend,  he  has  a  right  to  apply  it  to  what  debt  he 
R.  450  ;  Butler  «.  Miller,  1  Denio's  R.  407;  pleases;  Speck  v.  The  Commonwealth,  3 
Gardner  v.  Hust,  2  Richard.  R.  601.  Thus,  Wat.  &  Serg.  R.  328  ;  Berghaus  v.  Alter,  9 
the  giving  of  a  new  note  for  an  old  one,  is  Wat.  R.  387  ;  The  Mayor  and  Commonalty 
equivalent  to  a  payment  of  the  latter  ;  Corn-  of  Alexandria  v.  Patten  et  al.,  4  Cranch's  R. 
wall  V.  Gould,  4  Pick.  R.  444  ;  Huse  v.  Alex  317  ;  Field  et  al.  v.  Holland  et  al.,  6  Id.  8  ; 
ander,  2  Metcf.  R.  157  ;  and  so  of  a  bond  ;  Bosley  v.  Porter,  4  J.  J.  Marsh.  R.  621  ;  Hall 
Morrison  v  Berkey,  7  Serg.  &  Raw.  R.  238  ;  et  al.  v.  Constant,  2  Hall's  R.  185  ;  McDonald 
Hamilton,  Exr.,  v.  Collender's  Exrs.,  1  Dal.  v.  Pickett,  2  Bail.  R.  617  ;  Black  v.  Schooler, 
R.  420  ;  Gregory  v.  Thomas,  20  Wend.  R.  2  McC.  R.  293  ;  Bonaffe  v.  Woodbury,  12 
17,  This,  however,  is  a  question  to  be  deter-  Pick.  R.  456  ;  Hussey  v.  The  Manufacturers' 
mined  by  the  intention  of  the  parties  ;  United  and  Mechanics'  Bank,  10  Id.  415  ;  Martin  v. 
States  V.  Lyman,  1  Mason's  R.  482  ;  Van  Draher,  5  Wat.  R.  544 ;  Moorhead  v.  The 
Vleet  et  al.  v.  Jones  et  al.,  Spencer's  R.  341  ;  West  Branch  Bank,  3  Wat.  &  Serg.  R.  550  ; 
Wallace  V.  Farman,  4  Wat.  R.  378  ;  Sellers  Boutwell  v.  Mason  et  al.,  12  Vt.  R.  608; 
V.  Jones,  22  Pa.  St.  R.  425  ;  Shaw  v.  The  Randall  v.  Parramore  et  al.,  1  Fla.  R.  410; 
Church,  39  Id.  226;  and  that  intention,  in  Read  v.  Boardman,  20  Pick.  R.  441;  Pin- 
doubtful  cases,  may  be  ascertained  by  the  in-  dall's  Exrx.  v.  The  Bank  of  Marietta,  10 
terventionof  a  jury  ;  Hurt?;.  Boiler,  15  Serg.  Leigh's  R.  481;  Miller  v.  Trevilian,  2  Rob. 
A  Raw.  R.  162;  Jones  v.  Shawhan,  4  Wat.  A  (Va.)    R.   2;  Jackson  v.   Bailey,    12   III.  R. 


206 


OF    CnOSES   IN   ACTION. 


interest,  the  payment  is  considered  to  be  applied  in  the  first  place 
in  dischars-e  of  the  interest  then  due,  and  the  surplus,  if  any,  in 


159;  McTavish  et  nl.  v.  Carroll,  1  Md.  Ch. 
Decisions,  160  ;  Treadwell  v.  Moore,  34  Maine 
R.  112;  Caldwell  v.  Wentworth.  U  N.  H.  R. 
431  ;  Spring  Garden  Association  v.  Trades- 
men's Loan  Association,  46  Pa  St.  R.  495  ; 
Crisler  v.  McCoy,  33  Missi.  R.  445  ;  Calvert 
V.  Carter,  18  Md.  R.  73  ;  and,  if  the  debtor 
does  not  make  the  application,  the  creditor 
may  ;  Speck  v.  The  Commonwealth,  3  Wat. 
&  Serg.  R.  328  ;  Berghaus  v.  Alter,  9  Wat.  R. 
387  ;  The  Mayor  and  Commonalty  of  Alexan- 
dria V.  Patten  et  al.,  4  Cranch's  R.  317  ; 
Fields  et  al.  v.  Holland  et  al.,  6  Id.  8  ;  Mann 
V.  Marsh,  2  Caines's  R.  99  ;  Reynolds  et  al.  v. 
McFarlane,  Overton's  R.  488  ;  Arnold  v. 
Johnson,  1  Scam.  R.  196  ;  McFarland  et  al.  v. 
Lewis  et  al.,  2  Id.  345  ;  Hillyer  v.  Vaughan, 
1  J.  J.  Marsh.  R.  583  ;  Briggs  v.  Williams  et 
al.,  2  Vt.  R.  283  ;  Rossian  et  al.  v.  Call  et 
al.,  14  Id.  83  ;  Selleck  v  The  Sugar  Hollow 
Turnpike  Co.,  13  Conn.  R.  453  ;  Rackley  v. 
Pearce,  1  Kelly's  R.  241 ;  Sturges  et  al.  v. 
Robbins,  7  Mass.  R.  301  ;  Brewer  v.  Knapp 
et  al.,  1  Pick.  R.  332  ;  Logan  v.  Mason,  6 
Wat.  &  Serg.  R.  9  ;  The  Stamford  Bank  v. 
Benedict,  15  Conn.  R.  438  ;  Mitchell  v.  Dall, 
4  Gill.  &  Johns.  R.  361  ;  Clark  et  al.  v.  Bur- 
dett,  2  Hall's  R.  197  ;  Van  Rensselaer's  Exrs. 
V.  Roberts,  5  Denio's  R.  470  ;  Hamilton  v. 
Benbury,  2  Hayw.  R.  385  ;  Niagara  Bank  v. 
Rosevelt,  9  Cow.  R.  409  ;  Taylor  et  al.  v. 
Jones,  1  Cart.  R.  17  ;  McTavish  et  al.  v. 
Carroll,  1  iMd.  Ch.  Decisions,  160  ;  Sawyer, 
Admr.,  v.  Tappan,  14  N.  H.  R.  352  ;  Cald- 
well V.  Wentworth,  Id.  431  ;  Philad'a  Mer- 
cantile Loan  Association  v.  Moore,  47  Pa. 
St.  R.  233;  Hargraves  v.  Cooke,  15  Geo.  R. 
321  ;  but,  where  neither  debtor  nor  creditor 
makes  an  appropriation,  the  court  will  do  it 
for  them  ;  Speck  v.  The  Commonwealth,  3 
Wat.  &  Serg.  R.  328  ;  Berghaus  v.  Alter,  9 
Wat.  R.  387  :  Fields  et.  al.  v.  Holland  et 
al.,  6  Cranch's  R.  8  ;  Cremer  i:  Higginson, 
1  Mas.  R.  338  ;  McTavish  et  al.  v.  Carroll,  1 
Md.  Ch.  Decisions,  160  ;  Caldwell  v.  Went- 
worth, 14  N.  H.  R.  431  ;  Pierce  v.  Knight,  31 
Vt.  R.  701. 

The  intention  of  the  debtor  to  appropriate 
a   payment,   may,  however,  be  indicated  by 


the  circumstances  of  the  case,  as  well  as  by 
an  express  direction  ;  Tayloe  v.  Sandiford,  7 
Wheat.  R.  14  ;  Mitchell  v.  D;ill,  2  Har.  & 
Gill's  R.  160,  S.  C.  4  Gill.  A  Johns.  R.  361  ; 
Fouke  V.  Bowie,  4  Har.  &  Johns.  R.  566  ; 
Robert  et  al.  v.  Garnie,  3  Caines's  R.  14  ; 
West  Branch  Bank  v.  Moorehead,  5  AVat.  & 
Serg.  R.  542  ;  Dickinson  College  v.  Church,  1 
Id.  462;  Schnell  f.  Schroeder,  Bailey's  Eq. 
335  ;  Scott  v.  Fisher,  4  Mon.  R.  .387  ;  Stone 
V.  Seymour,  8  Wend.  R.  404,  S.  C.  15  Id.  19; 
Terhune  v.  Colton,  1  Beasley's  R.  233,  312; 
and  so  of  the  intention  of  the  creditor  ;  Star- 
rett  V.  Barber,  20  Maine  R.  457  ;  Allen  v. 
Kimball,  23  Pick.  R.  473  ;  Upham  et  al.  v. 
Lefavour,  11  Mete.  R.  174;  Allen  v.  Culver, 
3  Denio's  R.  285  ;  Lindsey  v.  Steven,  5  Dana's 
R.  104 ;  and  consequently,  the  discretionary 
power  of  the  court,  to  appropriate  a  payment 
not  expressly  applied  by  either  debtor  or  cred- 
itor, is  to  be  controlled  by  the  intention  of 
the  parties,  as  determined  by  all  the  circumf 
stances  of  the  case  ;  Emery  v.  Tichout,  13  Vt. 
R.  15  ;  Robinson  et  al.  v.  Doolittle  et  al.,  12 
Id.  246  ;  Hillyer  v.  Vaughan,  1  J.  J.  Marsh. 
R.  583  ;  The  Stamford  Bank  v.  Benedict,  15 
Conn.  R.  438;  Cheston  y.  Wheelwright,  Id. 
562  ;  Portland  Bank  v.  Brown,  22  Maine  R. 
295;  Smith  v.  Lloyd,  11  Leigh's  R.  512; 
Caldwell  V.  Wentworth,  14  N.  II.  R.  431  ; 
Johnson's  Ap.  37  Pa.  St.  R.  270;  Smith  v. 
Brooke,  49.  Id.  147.  Thus,  in  cases  of  running 
accounts,  payments  are  to  be  applied  to  the 
debts  antecedently  incurred,  in  order  of  time  ; 
Speck  V.  The  Commonwealth,  3  Wat.  &  Serg. 
R.  328  ;  Berghaus  v.  Alter,  9  Wat.  R.  387  ; 
United  States  v.  Kirkpatrick  et  al.,  9  Wheat. 
R.  720  ;  Jones  v.  The  United  States,  7  How. 
R.  681 ;  Boodyet  al.  v.  The  United  States,  1 
Woodbury  &  Minot's  R.  151  ;  Postmaster- 
General  V.  Furber,  4  Mas.  R.  333  ;  United 
States  V.  Wardwell  et  al.,  3  Id.  82  ;  Gass  v. 
Stinson,  3  Suran.  R.  99  ;  McKenzie-y.  Kevins, 
22  Maine  R.  138  ;  Miller  v.  Miller,  23  Id  22  ; 
Smith  V.  Lloyd,  11  Leigh's  R.  512  ;  Fairchild 
V.  Holly,  10  Conn.  R.  176  ;  Allen  v.  Culver, 
3  Denio's  R.  285  ;  Ross's  Exrs.  v.  McLauch- 
lan's  Admr.  etal.,  7  Gratt.  R.  86;  McKee's 
Exrs.  V.  Commonwealth,    2  Grant's  Cas.  23  ; 


OF    DEBTS. 


207 


discharge  j^^^o  tanio  of  the  principal.     For  no  creditor  would  ap- 
ply any  payment  to  the  discharge  of  part  of  the  principal,  which 


Pierce  v.  Sweet,  35  Pa.  St.  R.  151  ;  Antarctic, 
Sprague's  Decs.  206  ;  Price  v.  Cutts,  29  Ga. 
R.  142;  and  the  appropriation  will  be  made 
to  the  first  items  of  such  an  account,  which 
are  secured,  although  the  balance  be  unse- 
cured ;  Gushing  f.  Wyman,  44  Maine  R.  121  ; 
but  see  exceptions  to  this  rule,  in  the  case  of 
collectors  of  taxes  ;  United  States  v.  Patter- 
son, 7  Cranch.  R.  572;  Jones  v.  The  United 
States,  7  How.  R.  681  ;  Seymour  v.  Van 
Slyck,  8  Wend.  R.  404  ;  Stone  v.  Seymour, 
15  Id.  19  ;  Postmaster  v.  Norvell,  Gilpin's  R. 
107  ;  City  of  St.  Joseph  v.  Merlatt,  26  Misso. 
R.  233.  So,  where  there  are  two  debts,  one 
bearing  interest,  and  the  other  not,  the  pay- 
ment is  to  be  appropriated  to  the  debt  bear- 
ing interest  ;  Gwinn  v.  Whittaker,  1  Har.  & 
Johns.  R.  754 ;  Dorsey  v.  Gassaway,  2  Id. 
402  ;  Bacon  v.  Brown,  1  Bibb's  R.  334  ;  Beau- 
ton  V.  Rice,  5  Mon.  R.  263  ;  McTavish  et  al. 
V.  Carroll,  1  Md.  Ch.  Decisions,  160;  Scott 
V.  Cleveland,  33  Missi.  R.  447  ;  McFadden  v. 
Fortier,  20  111.  R.  509  ;  and  a  payment  must 
be  applied  to  a  debt  due,  rather  than  to  one 
not  due  ;  McDowell  v.  The  Blackstone  Canal 
Co.,  5  Mas.  R.  11  ;  Baker  v.  Stackhoole,  9 
Cow.  R.  420  ;  Bacon  v.  Brown,  1  Bibb's  R. 
334;  Stone  v.  Seymour,  15  Wend.  R.  19; 
Upham  et  al.  v.  Lefavour,  11  Mete.  R.  174  ; 
Lebleu  v.  Rutherford  et  al.,  9  Robins.  R. 
95  ;  Follain  et  al.  v.  Orillion,  Id.  506  ;  Tread- 
well  V.  Moore.  34  Maine  R.  112;  Caldwell  v. 
Wentworth,  14  N.  H.  R.  431  ;  Thomas  v. 
Kelsey,  30  Barb.  R.  268  ;  Effinger  v.  Hender- 
son, 33  Missi.  R.  449  ;  and  to  a  several,  in 
preference  to  a  joint  debt ;  Livermore  v. 
Claridge,  33  Maine  R.  428  ;  and,  to  a  legal, 
rather  than  to  an  illegal  debt ;  Hall  v.  Clem- 
ent, 41  N.  H.  R.  166  ;  Rohan  v.  Hanson,  11 
Cush.  R.  44 ;  Gill  v.  Rice,  13  Wis.  R.  549. 
So,  again,  the  appropriation  by  the  court,  in 
the  case  of  two  debts,  one  of  which  is  se- 
cured, and  the  other  not,  must  be  made  to 
the  debt  not  secured;  or,  if  both  debts  are 
secured,  then  to  the  one  of  which  the  security 
is  most  precarious  ;  Field  et  al.  v.  Holland 
et  al.,  6  Cranch's  R.  8;  Merrimack  Co. 
Bank  v.  Brown,  12  N.  H.  R.  321  ;  Portland 
Bank  v.  Brown,  22  Maine  R.  295  ;  Niagara 
Bank  v.  Rosevelt,  9  Cow.  R.  410  ;   Newman 


V.  Meek,  1  Smed.  &  Mar.  R.  331  ;  Hammer's 
Admr.  v.  Rochester,  2  J.  J.  Marsh.  R.  144  ; 
Blanton  v.  Rice,  5  Mon.  R.  253  ;  Smith  v. 
Lloyd,  11  Leigh's  R.  512  ;  The  Stamford 
Bank  v.  Benedict,  15  Conn.  R.  438  ;  Cheston 
V.  Wheelright,  Id.  562  ;  Vance  v.  Monroe,  4 
Gratt.  R.  63  ;  Upham  et  al.  v.  Lefavour,  11 
Mete.  R.  174  ;  The  Ordinary  v.  McCollum,  3 
Strobh.  R.  494  ;  Blackhouse  et  al.  v.  Patton 
et  al.,  5  Pet.  R.  161  ;  Briggs  v.  Williams  et 
al.,  2  Vt.  R.  283  ;  Emery  v.  Tichout,  13  Id. 
15  ;  Hilton  V.  Burley,  2  N.  H.  R.  193  ;  Black- 
stone  Bank  v.  Hill,  10  Pick.  R.  129  ;  Capen  v. 
Alden,  5  Mete.  R.  268  ;  Jones  v.  Kilgore,  2 
Richard  Eq.  R.  64  ;  McTavish  et  al.  v.  Car- 
roll, 1  Md.  Ch.  Decisions,  160  ;  but  see,  to 
the  contrary,  Gwinn  v.  Whitaker,  1  Har.  & 
Johns.  R.  754  ;  Dorsey  v.  Gassaway,  2  Id. 
402  ;  Pattison  v.  Hall,  9  Cow.  R.  747  ;  Robin- 
son et  al.  V.  Doolittle  et  al.,  12  Vt.  R.  246  ; 
Watt  V.  Hoch,  25  Pa.  St.  R.  411.  In  accord- 
ance, also,  with  this  doctrine,  a  partial  pay- 
ment, unappropriated  by  either  party,  must 
be  applied  to  tlie  interest,  rather  than  to  the 
principal  of  the  debt  ;  Spires  v.  Hamot,  8 
Wat.  &  Serg.  R.  17  ;  Commonwealth,  for  the 
use,  &c.,  t;.Vanderslice  et  al.,  Admrs.,  8  Serg. 
&  Raw.  R.  425  ;  Smith  v.  Admx.  of  Shaw,  2 
Wash.  C.  C.  R.  167  ;  Tracey  v.  Wikoff,  1  Dall. 
R.  124  ;  Primrose  v.  Hart,  Id.  378  ;  Steele  v. 
Taylor,  4  Dana's  R.  445  ;  Story  v.  Living- 
ston, 13  Pet.  R.  360  ;  The  United  States  v. 
McLemore,  4  How.  R.  286  ;  Dean  v.  Wil- 
liams, 17  Mass.  R.  417  ;  Commonwealth  v. 
Miller's  Admrs.,  8  Serg.  &  Raw.  R.  452  ; 
Gwin  V.  Whitaker,  1  Har.  &,  Johns.  R.  754  ; 
Frazier  v.  Hyland,  Id.  98  ;  Jones  v.  Ward,  10 
Yerg.  R.  161  ;  Guthrie  et  al.  v.  Wicklifi"e,  1 
Marsh.  R.  584  ;  Hart  v.  Derman,  2  Fla.  R. 
445  ;  The  Union  Bank  of  La.  v.  Kindrick,  10 
Rob.  R.  51  ;  Williams  f.  Houghtaling,  3  Cow. 
R.  87  ;  Stoughton  v.  Lynch,  2  Johns.  Ch.  R. 
209  ;  Lewis's.Exr.  v.  Bacon's  Exrs.,  3  Hen. 
A  Munf.  R.  89  ;  Edes  v.  Goodridge,  4  Mass. 
R.  103;  Fay  ;;.  Bradley  et  al.,  1  Pick.  R. 
194;  Meredith  v.  Bank.«,  1  Halst.  R.  408  ; 
Lightfoot  V  Price,  4  Hen.  <t  Munf.  R.  431  ; 
Bunn  V.  Moore's  Exrs.,  1  Hayw.  R.  272  ; 
Anon.,  2  Id.  17  ;  North  et  al.  v.  Mattel!,  Id. 
151  ;  Chapline  v.  Scott,  4  Har.  &  Mellon.  R. 


208  OF   CHOSES   IN   ACTION. 

carries  interest,  instead  of  to  the  discharge  of  interest  for  which, 
when  due,  no  further  interest  is  payable. (^j) 

When  a  person  becomes  so  embarrassed  as  to  be  unable  to  pay 
all  his  debts  in  full,  he  usually  endeavors  to  enter  into  a  composi- 
tion with  his  creditors,  prevailing  on  them  to  accept  so  much  in 
the  pound,  and  to  allow  a  given  time  for  payment.  In  this  case  a 
letter  of  license  is  generally  given  by  the  creditors,  by  which  they 
covenant  not  to  take  any  proceedings  for  their  debts  in  the  mean- 
time ;  and  this  license  is  frequently  embodied  in  a  deed  of  inspector- 
ship, by  wdiich  certain  inspectors  are  appointed  to  watch  the  wind- 
ing up  of  the  debtor's  affairs  on  behalf  of  the  creditors.  The 
payment  of  the  composition  is  sometimes  guaranteed  by  some 
r*iirn  fi'i^nds  of  the  *debtor  as  his  sureties,  and  when  payment 
'■         -'is  made,  a  release  of  all  demands  is  given  by  the  creditors. 

ip)   Bower  v.  Marris,  1  Or.  &  Phi.  351,  355. 

94  ;  Admrs.  of  Norwood  ads.  Manning.  2  N.  cases  holding,  that  it  may  be  made  at  any 
&  McC.  R.  395  ;  Johnson  v.  Johnson,  5  Jones  time ;  The  Mayor  and  Commonalty  of  Alex- 
Eq.  R.  157;  Hampton  v.  Dean,  4  Texas  R.  andria  v.  Patten  et  al.,  4  Cranch's  R.  317; 
455  ;  and,  where  a  creditor  is  entitled  to  the  Brady's  Admr.  v.  Hill  et  al.,  1  Mo.  R.  315  ; 
payment  of  two  distinct  sums,  one  of  which  is  Hilton  v.  Barley,  2  N.  H.  R.  193;  Starrett  v. 
in  his  own  right,  and  the  other  to  be  paid  to  Barber,  20  Maine  R.  457  ;  Lindsey  v.  Ste- 
him  as  a  trustee,  and  a  partial  payment  is  vens,  5  Dana's  R.  104 ;  Heilbron  v.  Bissel  et 
made,  it  must  be  appropriated  ratably  ;  al.,  1  Bail.  Eq.  R.  430  ;  Jones  v.  The  United 
Scott  V  Ray  et  al.,  18  Pick.  R.  361  ;  Barrett  States,  7  How.  R.  681 ;  and  others,  that  the 
V.  Lewis,  2  Id.  123  ;  Cole  v.  Trull,  9  Id.  325  ;  application  must  be  made  within  a  reasonable 
Barker  et  al.  w.  Conrad  et  al.,  12  Serg.  &  time;  Harker  et  al.  v.  Conrad  et  al.,  12 
Raw.  R.  30]  ;  and  so,  when  one  holds  a  debt  Serg.  &  Raw.  R.  301  ;  Briggs  v.  Williams  et 
due  to  himself,  and  another  debt  due  to  him-  al.,  2  Vt.  R.  283;  Fairchild  v.  Holly,  10 
self  and  another,  the  appropriations  must  be  Conn.  R.  176;  Patterson  v.  Hall,  9  Cow.  R. 
ratably  ;  Colby  v.  Copp,  35  N.  H.  R.  434.  747  ;  but  there  is  no  doubt,  that  the  applica- 

Where  an  appropriation  or  application  has  tion  cannot  be  made  after  a  controversy  has 
been  once  made,  it  cannot  be  altered  without  arisen  between  the  parties  ;  United  States  v. 
the  consent  of  the  parties  ;  Hillet  al.  v  Suth-  Kirkpatrick,  9  Wheat.  R.  720  ;  Robinson  et 
erland's  E.'crs.,  1  Wash.  C.  C.  R.  128  ;  White  al.  v.  Doolittle  et  al.,  12  Vt.  R.  246  ;  Fair- 
V.  Trumbull,  3  Green's  R.  314;  Hilton  v.  child  t).  Holly,  10  Conn.  R.  176. 
Burley,  2  N.  H.  R.  193  ;  Hopkins  v.  Conrad  In  the  recent  case  of  Marsh  v.  The  Oneida 
et  al.,  2  Raw.  R.  316  ;  Martin  v.  Draher,  5  Central  Bank,  34  Barb.  R.  298,  it  was  held, 
Wat.  R.  544 ;  Bank  of  North  America  v.  that  a  bank  which  held  a  note  against  a  de- 
Meredith,  2  Wash.  C.  C.  R.  47  ;  Allen  v.  Cal-  positor,  was  not  bound  to  make  application 
ver,  3  Denio's  R.  285  ;  The  Mayor  and  Com-  of  deposits  when  the  note  became  due,  but 
monalty  of  Alexandria  v.  Patten  et  al.,  4  might  wait  until  judgment  was  obtained 
Cranch's  R.  317  ;  Rundlett  v.  Small,  25  Maine  against  the  depositor.  For  general  rules,  as 
R.  29  ;  Jackson  v.  Bailey,  12  111.  R.  159.  to  the  rights  of  creditor  and  debtor  in  regard 

The  most  embarrassing  question  in  con-  to  the  application  of  payments,  see  the  mod- 
nection  with  this  subject,  is,  as  to  when  the  ern  case  of  Gaston  v.  Barney,  11  0.  R.  (N.  S.) 
appropriation  is  to  be  made ;    some  of  the    506. 


OF    DEBTS.  209 

If,  however,  the  composition  should  not  be  punctually  paid,  the 
creditors  will  no  longer  be  restrained  from  proceeding  to  enforce  the 
full  payment  of  their  debts.  (</)  Such  creditors  as  hold  security  for 
their  debts  should  openly  stipulate  that  their  securities  are  not  to 
be  affected ;  and  such  a  stipulation  will  be  sufficient  to  preserve 
them.(r)  But  any  secret  agreement  between  the  debtor  and  a 
creditor,  by  which  he  is  to  have  any  advantage  over  the  others,  in 
order  to  induce  him  to  agree  to  the  composition,  is  evidently  a 
fraud  on  the  other  creditors,  and  as  such  is  absolutely  void,(5)  and 
prevents  the  creditor  who  is  party  to  it  from  suing  for  his  share  in 
the  composition.  (^)^ 

The  Bankruptcy  Act,  1861,  now  provides,(z^)  that  every  deed, 
instrument  or  agreement  whatsoever,  by  which  a  debtor,  not  being 
a  bankrupt,  conveys,  or  covenants  or  agrees  to  convey  his  estate 
and  eftects,  or  the^principal  part  thereof,  for  the  benefit  of  his  credi- 
tors, or  makes  any  arrangement  or  agreement  with  his  creditors, 
or  any  person  on  their  behalf,  for  the  distribution,  inspection,  con- 
duct, management  or  winding  up  of  his  afikirs  or  estate,  or  the 
release  or  discharge  of  such  debtor  from  his  debts  or  liabilities, 
shall,  within  *twenty-eight  days  fi'om  and  after  the  execu-  ^ 
tion  thereof  by  such  debtor,  or  within  such  further  time  as  '-  -• 
the  Court  in  London  shall  allow,  be  registered  in  the  Court  of 

(q)  Cranley  v.  Hillary,  2  Mau.  &  Selw.  120. 

(r)  Nichols  V.  Morris,  3  Barn.  &  Adol.  41,  E.  C.  L.  R.  vol.  23;  Ex  parte  Glendinning, 
Buck,  517;  Lee  v.  Lockhart,  3  Mylne  &  Craig,  302;  CuUingworth  v.  Loyd,  3  Beav.  385, 
and  the  cases  collected,  p.  395  ;   Bush  v.  Shipman,  14  Sim.  239. 

(5)  Leicester  v.  Rose,  4  East,  372  ;  Knight  v.  Hunt,  5  i^ing.  432,  E.  C.  L.  R.  vol.  15  ; 
Pendlebury  v.  Walker,  4  You.  &  Coll.  424  ;  Alsager  v.  Spalding,  4  N.  C.  407,  E.  C.  L.  R. 
vol.  33;  Higgins  V.  Pitt,  4  E.^.  Rep.  312:  Pfleger  r.  Browne,  28  Beav.  391;  Mare  v.  War 
ner,  3  GifiF.  100;  Mare  v.  Earle,  3  GifiF.  108. 

(0  Howden  v.  Haigh,  11  Adol.  &  Ell.  1033,  E.  C.  L.  R.  vol.  39;  Ex  parte  Oliver,  4  De 
Gex  &  Sniale,  354.     See  Atkinson  v.  Denby,  7  H.  &  N.  934. 

(u)  Stat.  24  &  25  Vict.  c.  134,  s.  194 ;  Hodgson  v.  Wighttnan,  1  H.  &  Colt.  810.  See  Ex 
parte  Morgan,  L.  C,  9  Jur.  N.  S.  559,  qu.  ? 

1  In  the  absence  of  any  agreement  made  this  preference  is  made  in  contemplation  of 

between  a  debtor  and  his  creditors,  it  seems  an  act  of  bankruptcy,    or  insolvency,  or  an- 

to  be  the  prevailing  rule  in  this  country,  that  ticipatory  and  with  a  view  to  a  subsequent 

a  debtor  in  failing  circumstances,  may  give  a  assignment  for  the  benefit  of  creditors,  that 

preference  to  one  creditor,  or  one  set  of  credi-  any  ([uestion  of  its  validity  can  arise.     For  a 

tors,  by  paying  his  or  their  debts  in  full,  to  the  full  consideration  of  the  subject,  see  Uilliard's 

exclusion  of  all  the  rest  of  the  creditors,  pro-  ^freatiseon  the  Law  of  Bankruptcy  and  In- 

vided  it  is  done  in  good  faith.   It  is  only  where  solvency,  chap,  x,  pp.  322^to^36i  inclusive. 

14 


Vr 


210 


OF   CHOSES   IN   ACTION, 


Banlo'uptcy ;  and  in  defimlt  thereof  shall  not  be  received  in  evi- 
dence. And  every  such  deed,  on  being  so  registered  as  aforesaid, 
shall  have  a  memorandum  thereof  written  on  the  face  of  such  deed, 
stating  the  day  and  the  hour  of  the  day  at  which  the  same  was 
brought  into  the  ottice  of  the  Chief  Registrar  for  registration. (i-) 

In  some  cases  an  assignment  of  the  debtor's  estate  and  effects 
is  made  to  trustees  for  sale  and  conversion  into  money,  to  be 
divided  ratably  amongst  the  creditors.^     As,  however,  this  is  the 

{v)  Sect.  196. 


1  In  the  State  of  Pennsylvania,  volnntary 
assignments  for  the  benefit  of  creditors,  are 
chiefly  controlled  by  the  acts  of  the  Legisla- 
ture of  1836,  1843,  and  1849  ;  Purd.  Dig. 
(1861),  pp.  60,  61.  A  voluntary  assignment 
for  the  benefit  of  creditors,  has  been  defined 
by  the  Supreme  Court  of  that  State,  to  be  an 
assignment  in  trust,  of  the  whole,  or  a  part  of 
a  debtor's  property,  for  the  benefit  of  all  his 
creditors  equally  ;  Wiener  v.  Davis,  18  Pa.  St. 
R.  332  ;  hence,  a  preference  created  in  and  hf 
such  an  assignment,  is  contrary  to  law,  and 
therefore  void  ;  Wiener  v,  Davis,  18  Pa.  St. 
R,  333  ;  Blakey's  Ap.,  7  Id.  450  ;  Worman 
V.  Wolfersberger's  Exrs.,  19  Id.  59 ;  Lea's 
Ap.,  9  Id.  504,  but  it  is  only  the  preference 
which  is  void,  and  not  the  assignment, 
which  will  operate  for  the  benefit  of  all  the 
creditors  ratably;  Wiener  v.  Davis,  ante  ; 
Law  V.  Mills,  18  Pa.  St.  R.  185  ;  Bittenben- 
der  V.  Sunbury  &  Erie  R.  R.  40  Id.  269  ; 
Act  of  17  Apr.  1843,  Purd.  Dig.  60.  But 
preferences  taken  alone,  and  not  in  connection 
with  an  assignment  in  trust,  or  any  other  dis- 
position of  the  debtor's  property,  for  the  bene- 
fit of  his  creditors  generally,  are  not  unlawful 
if  buna  fide  made  ;  Worman  v.  Wolfersber- 
ger's Exrs.,  19  Pa.  St.  R.  59  ;  Morgan's  Ap., 
20  Id.  152  ;  Siegel  v.  Chidsey,  28  Id.  281  ; 
Burd  V.  Smith,  4  Dal.  R.  85  n ;  Mechanics' 
Bank  v.  Gorman,  8  Wat.  &  Serg.  R.  308  ; 
Dana  v  Bank  U.  S.,  5  Id.  223;  and  hence  it 
has  been  held,  that  a  creditor  who  has  a  lien 
upon  a  particular  portion  of  the  assigned  es- 
tate, out  of  the  sale  of  which  he  realizes 
a  portion  of  his  claim,  is  entitled  to  his;i;ro 


rata  dividend  on  the  whole  claim,  out  of  the 
general  assets  in  the  hands  of  the  assignee,  to 
an  amount  sufficient  to  pay  the  balance  of  his 
demand  in  full;  Keim's  Ap.,  27  Pa.  St.  R.  43  ; 
Morris  v.  Olwine,  22  Jd.  441  ;  and  the  better 
opinion  seems  to  be,  that  a  honnfide  confession 
of  judgment,  anterior  to  an  assignment,  will  be 
good  ;  Hutchinson  tJ.  McClure,  1  Am.  L.  Reg. 
170,  S.  C.  20  Pa.  St.  R.  63,  overruling  Sum- 
ner's Ap.,  16  Id.  174;  Blakey's  Ap.,  7  Id. 
450  ;  though  the  contrary  was  held  in  Towar 
V.  Barrington,  Brightlj''s  R.  252,  and  Wor- 
man V.  Wolfersberger's  Exrs.,  19  Pa.  St.  R. 
63;  the  authority  of  which  latter  decision, 
however,  fell  with  Sumner's  Appeal,  on  which 
it  stood  ;  but,  anterior  to  the  act  of  the  legis- 
lature of  1843,  and  under  the  act  of  1836, 
preferences  were  allowed,  for  that  act  did  not 
forbid  preferences  in  an  assignment.  See 
cases  above  cited,  and  Hower  v.  Geeseamen, 
17  Serg.  k  Raw.  R.  251  ;  Thomas  v.  Jenks,  5 
Raw.  R.  224  ;  Henessy  v.  Western  Bank,  6 
Wat.<t  Serg.  R.  301.  It  is  not,  therefore,  sur- 
prising, that  under  the  act  of  1836,  it  should 
have  been  held,  that  when  a  debtor  made  an 
assignment  for  the  benefit  of  creditors,  he 
could  stijjulate  that  it  should  only  operate  for 
the  benefit  of  those  creditors  who  should  sign 
a  release  ;  Livingston  v.  Bell,  3  Wat.  R.  198  ; 
Henessy  v.  Western  Bk.,  6  Wat.  &  Serg.  R. 
301  ;  though  even  under  that  act,  and  pre- 
vious thereto,  such  a  stipulation  was  not 
allowed  in  case  of  a  partial  assignment  in 
trust  for  the  benefit  of  creditors  ;  at  least, 
it  was  held  that  such  a  stipulation  in  a  par- 
tial assignment,  would   result  in  a  reserva- 


OF    DEBTS. 


211 


process  adopted  by  the  law  in  cases  of  bankruptcy,  where  it  is 
carried  on  under  judicial  sanction,  the  law  considers  that  such  an 
assignment  of  the  whole  of  the  estate  of  the  debtor  is  an  act  of 
brankruptcy,  and  as  such  void,  if  there  be  any  creditor  or  credi- 


tion  of  8,  portion  of  the  debtor's  property, 
which  would  render  the  assignment  void  j 
McAllister  v.  Marshall,  6  Bin.  R.  338  ;  Mc- 
Clurg  V.  Lecky,  3  Pa.  R.  91  ;  Irwin  v.  Kean, 
3  Whart.  R.  347  ;  Boker  v.  Crookshank,  8 
Leg.  Intell.  82  ;  Johns  v.  Bolton,  12  Pa.  St. 
R.  339  ;  In  re  Walton,  4  Id.  430  ;  Weber  v. 
Samuel,  7  Id.  499  ;  but  it  is  perhaps  a  matter 
of  some  astonishment,  that  such  stipulations 
should  have  been  held  valid  under  the  act  of 
1843;  Lea's  Ap.,  9  Pa.  St.  R.  504;  for,  as 
such  a  stipulation  would  tend  to  work  in- 
equality amongst  the  creditors,  if  they  did  not 
all  join  in  executing  the  release,  it  would  neces- 
sarily operate  antagonistically  to  the  act  of 
1843,  which  by  its  enactments  requires,  that 
the  property  should  be  distributed  equally. 
This  decision,  however,  did  not  long  embar- 
rass the  courts,  for  by  the  act  of  1849,  stipu- 
lations in  assignments  in  trust  for  the  benefit 
of  creditors,  that  they  should  only  operate 
for  the  benefit  of  those  creditors  who  should 
sign  a  release,  were  prohibited,  and  it  was 
enacted,  that  any  such  assignment  shall  be 
taken  as  a  preference  in  favor  of  such  cred- 
itors, and  be  void,  and  the  assignment  be 
held  and  construed  to  inure  to  the  benefit  of 
all  the  creditors,  in  proportion  to  their  respec- 
tive demands. 

Where  there  is  an  assignment  in  trust  for 
the  benefit  of  creditors  generally,  and  there 
are  both  partnership  and  individual  creditor, 
and  partnership  and  individual  property,  it 
seems  to  be  pretty  conclusively  decided,  that 
the  partnership  property  will  be  applied  to 
the  partnership  creditors,  and  the  individual 
or  separate  property  to  the  separate  creditors  ; 
Andress  v.  Miller,  15  Pa.  St.  R.  316  ;  Singi- 
zer's  Ap.,  28  Id.  525  ;  Walker  v.  Eyth,  25  Id. 
217  ;  and  if  either  fund  is  insufficient,  the 
balance  of  the  fund  not  exhausted,  i.';  to  be 
paid  to  those  separate  or  partnership  cred- 
itors, who  have  not  been  paid  out  of  their  own 
fund;  HonsearsAp.,45Pa.  St.  R.4H7;  Black's 
Ap.,  44  Id.  508  ;  Andress  v.  Miller,  15  Id. 
316  ;  it  has  been  held,  also,  that  an  assign- 


ment of  partnership  property  to  pay  partner- 
ship creditors  only,  and  the  surplus  to  the  as- 
signors, is  valid  ;  Ilubler  v.  Waterman,  33  Pa. 
St.  R.  415.  And  see  Heckman  v.  Messenger, 
Leg.  Intell.  Jan.  5,  1866,  p.  4,  49  Pa.  St.  R. 
466,  a  recent  decision  of  the  Supreme  Court 
on  this  point.  But  see  Bell  v.  Newman,  5 
Serg.  &  Raw.  R.  78. 

A  peculiar  instance  of  the  application  of 
partnership  assets  to  partnership  creditors, 
under  an  assignment  in  trust,  occurred  in  the 
case  of  Baker's  Ap.,  21  Pa.  St.  R.  77.  The 
facts  of  that  case  were  these.  A  firm  con- 
sisted of  five  brothers.  Two  of  them  retired 
from  the  firm,  disposing  of  their  interest  in 
the  partnership  estate  and  efi"ect  to  the  other 
three,  the  latter  agreeing  to  pay  the  debts  of 
the  firm,  and  exonerate  and  defend  the  as- 
signors from  all  obligation  to  pay  any  part  of 
the  same.  After  some  time,  one  of  the  re- 
maining three  sold  his  interest  in  the  part- 
nership property  to  one  of  the  remaining  two 
partners,  said  to  be  without  the  approbation 
of  his  copartner.  The  two  remaining  part- 
ners, after  contracting  debts,  executed  an  as- 
signment of  their  partnership  property,  by 
the  terras  of  the  assignment  it  being  expressly 
to  pay  the  creditors  of  the  last  firm,  composed 
of  the  two  partners  :  It  was  held,  that  the 
creditors  of  the  first  two  firms  had  no  right 
to  claim  any  portion  of  the  fund  last  assigned, 
but  that  the  same  was  distributable  among 
the  creditors  of  the  last  firm. 

In  connection  with  this  subject  it  may  be 
remarked,  that  it  has  been  held,  that  a  judg- 
ment confessed  to  a  trustee  for  the  benefit  of 
some  of  the  creditors  of  the  debtor,  is  not  an 
as.«ignment  in  trust  for  the  benefit  of  credi- 
tors ;  Guy  V.  Mcllree,  28  Pa.  St.  R.  92; 
Breading  v.  Boggs,  20  Id.  37.  See  also 
Towar  v.  Barrington,  Brightly's  R.  263. 

By  the  act  of  the  24th  of  March,  1818,  an 
assignment  in  trust  for  the  benefit  of  credi- 
tors, must  be  recorded  within  thirty  days  after 
execution,  in  the  county  where  the  assignor 
resides  ;  Purd.  Dig.  (1861),  p.  61. 


212  OF   CHOSES    IN    ACTION. 

tors  who  have  not  concurred  in  it  of  sufficient  amount  to  sue  out 
a  petition  for  adjudication  of  Lankruptcy.(?r)  An  exception  to 
this  rule  is  made,  if  a  petition  for  adjudication  of  bankruptcy  do 
not  issue  within  three  calendar  months  from  the  execution  of 
such  a  deed  by  any  trader,  provided  the  deed  be  executed  by 
every  trustee  within  fifteen  days  after  the  execution  thereof  by 
the  trader,  and  that  the  execution  by  such  trader  and  by  every 
such  trustee  be  attested  by  an  attorney  or  solicitor;  and  provided 
that  notice  be  given  within  one  month  after  the  execution  thereof 
by  such  trader  in  the  London  Gazette  and  two  London  daily 
newspapers,  if  he  reside  in  London  or  within  forty  miles  of  it; 
or  in  the  London  Gazette,  one  London  daily  newspaper,  and  ohe 
provincial  newspaper  published  near  to  *such  trader's 
L  -'  residence,  if  he  do  not  reside  within  forty  miles  of  Lon- 
don; and  such  notice  must  contain  the  date  and  execution  of  the 
deed,  and  the  name  and  place  of  abode  respectively  of  every  such 
trustee  and  of  such  attorney  or  solicitor. (.t) 

But  every  such  deed  must  now  be  registered,  as  we  have  seen, 
in  the  Court  of  Bankruptcy. (?/)  And  no  deed  or  instrument 
whatever  required  to  be  so  registered  shall  be  registered,  unless, 
in  addition  to  the  ordinary  stamp  duty,  it  also  be  impressed  with 
or  have  affixed  to  it  a  stamp  denoting  a  duty  computed  at  the 
rate  of  five  shillings  upon  every  hundred  pounds,  or  fraction  of  a 
hundred  pounds,  of  the  sworn  or  certified  value  of  the  estate  or 
effects  comprised  in  or  to  be  collected  or  distributed  under  such 
deed  or  instrument;  provided,  that  the  maximum  of  ad  valorem 
duty  payable  in  respect  of  any  such  deed  or  instrument  shall  be 
two  hundred  pounds. (2-) 

{w)  Tappenden  v.  Burgess,  4  East,  230  ;  Button  v.  Morrison,  17  Ves.  193,  199  ;  Powell 
V.  Lloyd,  2  You.  &  Jerv.  372  ;  Ex  parte  Philpott,  Court  of  Review,  10  Jur.  717.  See  post, 
the  chapter  on  Bankruptcy  of  Traders. 

{x)  Stat.  12  &  13  Vict.  c.  106,  s.  68,  repealing  stat.  6  Geo.  IV,  c.  16,  s.  4. 

(y)  Stat.  24  &  25  Vict.  c.  134,  s.  194,  ante,  p.  116. 

(z)  Sect.  195.  It  was  probably  the  intention  of  the  framers  of  the  act,  that  the  above- 
mentioned  ad  valorem  duty  should  apply  only  to  the  arrangements  provided  for  by  the  192d 
section  of  the  act,  to  be  presently  mentioned.  The  194th  section  appears  to  have  been 
thrust  in  amongst  other  provisions,  in  such  a  way  as  to  cause  great  confusion.  But  the  act 
ought  to  be  read  as  it  stands,  if  sense  can  possibly  be  made  of  it. 


OF   DEBTS.  213 

The  Bankrupt  Law  Consolidation  Act,  1849,  contained  pro- 
visions by  which  deeds  of  arrangement  between  a  trader  and  his 
creditors,  signed  by  six-sevenths  in  number  and  value  of  those 
creditors,  whose  debts  amounted  to  ten  pounds  and  upwards, 
were  binding  on  all  the  creditors.(«)  These  provisions  have  now 
been  repealed  by  the  Bankruptcy  Act,  1861,(6)  which  *sub-  p^-,  -,  ^  -, 
stitutes  for  them  the  following  enactments,  which  apply,  '-  '  -• 
it  will  be  seen,  to  all  debtors,  whether  traders  or  not.  Every 
deed  or  instrument  made  or  entered  into  between  a  debtor  and 
his  creditors,  or  any  of  them,  or  a  trustee  on  their  behalf,  relating 
to  the  debts  or  liabilities  of  the  debtor,  and  his  release  therefrom, 
or  the  distribution,  inspection,  management  and  winding  up  of 
his  estate,  or  any  of  such  matters,  shall  be  as  valid  and  effectual 
and  binding  on  all  the  creditors  of  such  debtor,  as  if  they  were 
parties  to,  and  had  duly  executed  the  same;  provided  the  follow- 
ing conditions  be  observed;  that  is  to  say: 

1.  A  majority  in  number,  representing  three-fourths  in  value 
of  the  creditors  of  such  debtor,  whose  debts  shall  respectively 
amount  to  ten  pounds  and  upwards,  shall,  before  or  after  the 
execution  thereof  by  the  debtor,  in  writing  assent  to  or  approve 
of  such  deed  or  instrument. 

2.  If  a  trustee  or  trustees  be  appointed  by  such  deed  or  instru- 
ment, such  trustee  or  trustees  shall  execute  the  same. 

3.  The  execution  of  such  deed  or  instrument  by  the  debtor 
shall  be  attested  by  an  attorney  or  solicitor. 

4.  Within  twenty-eight  days  from  the  execution  of  such  deed 
or  instrument  by  the  debtor,  the  same  shall  be  produced  and  left 
(having  been  first  duly  stamped)  at  the  office  of  the  Chief  Regis- 
trar, for  the  purpose  of  being  registered. 

5.  Together  with  such  deed  or  instrument  there  shall  be 
delivered  to  the  Chief  Registrar  an  afiidavit  by  the  debtor,  or 
some  person  able  to  depose  thereto,  or  a  certificate  by  the  trustee 
or  trustees,  that  a  majority  in  number,  representing  three-fourths 
in  value,  of  the  creditors  of  the  debtor,  whose  debts  amount  to 
ten  pounds  or  upwards,  have  in  writing  assented  to  or  approved 

(«)   Stat.  12  &  13  Vict.  c.  106,  s.  224. 
(A)  Stat.  24  &  25  Vict.  c.  134,  s.  192. 


214  OF  cnosES  in  action. 

n^^^^-n  of  such  deed  or  instrument;  and  also  statinc^  *tlie  amount 
I    120 

"-         -•  in  value  of  the  property  and  credits  of  the  debtor  com- 
prised in  such  de.ed. 

6.  Such  deed  or  instrument  shall,  before  registration,  bear 
such  ordinary  and  ad  valorem  stamp  duties  as  are  by  the  act 
provided,  (c) 

7.  Immediately  on  the  execution  thereof  by  the  debtor,  .posses- 
sion of  all  the  property  comprised  therein,  of  which  the  debtor 
can  give  or  order  possession,  shall  be  given  to  the  trustees,  (c/) 

The  date,  names,  and  descriptions  of  the  parties  to  every  such 
deed  or  instrument,  not  including  the  creditors,  together  with  a 
short  statement  of  the  nature  and  effect  thereof,  shall  be  entered 
by  the  Chief  Registrar  in  a  book,  to  be  kept  exclusively  for  the 
purposes  of  such  registration.     Such  entry  shall  be  made  within 
forty-eight  hours  after  the  deed  shall  have  been  left  with   the 
registrar  as  aforesaid;  and  a  copy  of  such  entry  shall  be  published 
in  the  London  Gazette  within  four  days  after  the  making  of  such 
entry.(f)     After  registration  the  debtor  and  creditors  and  trustees, 
parties  to  such  deed,  or  who  have  assented  thereto,  or  are  bound 
thereby,  become  subject  to  the  jurisdiction  of  the  Court  of  Bank- 
ruptcy, in  the  same  manner  as  if  the  debtor  had  been  adjudged  a 
bankrupt;  and,  except  where  otherwise  expressly  provided  by  the 
deed,  all  questions  arising  under  it,  are  to  be  determined  accord- 
ing to  the  law  and  practice  in  bankruptcy.(/)^     After  notice  of 
the  filing  and  registration  of  such  deed  has  been  given  as  afore- 
said, no  execution  or  process  against  the  debtor's  property  or 
person  in  respect  of  any  debt,  other  than  such  process  by  writ  or 
warrant  as  may  be  had  against  a  debtor  about  to  depart  out  of 
England,  shall  be  available  to  any  creditor  or  *claimant 
*-        -^  without  leave  of  the  court;  and  a  certificate  of  the  filing 
and   registration    of  such  deed,  under  the  hand  of  the   Chief 
Registrar  and  the  seal  of  the  court,   shall  be  available  to  the 
debtor  for  all  purposes  as  a  protection  in  bankruptcy. (^)     In 

(c)   Stat.  24  &  25  Vict.  c.  134,  s.  195.     See  ante,  p.  118. 
•      {d)  Sect.  192.  (/)  Sect.  197. 

(e)   Sect.  19.3. 

{s)   Sect.  198.     But  if  the  deed  be  held  void,  the  certificate  is  of  no  avail ;  Ilderton  v. 
Jewell,  14  C.  B.  N.  S.  6f)5,  E.  C.'l.  R.  vol.  108. 


OF   DEBTS.  215 

case  any  petition  shall  be  presented  for  an  adjudication  in  bank- 
ruptcy against  a  debtor,  after  his  execution  of  any  such  deed  and 
pending  the  time  allowed  for  its  registration,  all  proceedings 
under  such  petition  may  be  stayed,  if  the  court  shall  think  fit; 
and  in  case  such  deed  shall  be  duly  registered,  the  petition  shall 
be  dismissed.  If  the  debtor  cannot  obtain  the  assent  of  a  majority 
in  number  representing  three-fourths  in  value  of  his  creditors  by 
reason  of  his  being  unable  to  ascertain  by  whom  bills  of  exchange, 
promissory  notes,  or  other  negotiable  securities,  accepted,  drawn, 
made,  or  indorsed  by  him  are  holden,  or  by  reason  of  the  absence 
of  creditors  in  a  foreign  country,  or  other  similar  circumstances, 
it  will  be  sufficient  if  he  obtain  the  consent  of  a  majority  in 
number  representing  three-fourths  in  value  of  all  his  other  credi- 
tors to  such  deed;  provided  that  notice  shall  have  been  inserted 
by  or  on  behalf  of  the  debtor,  in  one  ormo're  newspapers  published 
in  the  county  or  place  at  which  he  shall  have  carried  on  business, 
immediately  prior  to  the  date  of  such  deed,  requiring  his  creditors 
to  signify  their  assent  to,  or  dissent  from  such  deed,  by  notice  in 
writing  addressed  to  the  trustee  or  trustees  thereof,  within  four- 
teen days  from  the  insertion  of  such  notice,  and  that  the  affidavit 
or  certificate  of  the  trustee  or  trustees  shall  state  the  circumstances 
of  the  case,  and  the  same  shall  be  allowed  by  the  court;  and 
provided  the  deed  be  in  a  short  form  contained  in  a  schedule  to 
the  act,  which  shall  vest  all  the  estate  and  effects  of  the  debtor  in 
the  trustees  of  such  deed;  and  provided  that  *all  such  ^,.^^^ 
other  conditions,  as  are  by  the  act  required,  be  duly  com-  ^  '"'-' 
plied  with.  (A) 


Unfortunately  the  meaning  of  these  provisions  is  by  no  means 
80  clear  as  could  be  wished,  and  their  exact  purport  will  scarcely 
be  settled  without  much  litigation.  It  seems  that  all  the  creditors 
of  the  debtor,  and  not  merely  those  who  execute  the  deed,  ought 
to  be  equally  the  objects  of  its  provisions  ;(*)  and  the  deed  must 
not  contain  any  unreasonable  covenant  on  the  part  of  the  credi- 

• 

{h)  Stat.  24  &  25  Vict.  c.  1.34,  s.  200. 

(i)  Walter  «^.  AJcock,  7  H.  &  N.  641;  Ex  parte  Godden,  .32  L.  J.,  Bankruptcy,  37; 
Dewhurst  v.  Kershaw,  ]  Hurl.  &  Colt.  726;  Ilderton  v.  Castrique,  14  C.  B.  N.  S.  99,  E.  C. 
L.  R.  vol.  108  ;  Ex  parte  Cockburn,  Re  Smith,  L.  C,  12  W.  R.  184. 


216  OF   CHOSES   IN   ACTION. 

tors. (A)  111  estimating  tlie  requisite  majorit}^,  secured  as  well  as 
unsecured  creditors  must  be  taken  into  account,(^)i  But  it  would 
seem  to  be  the  better  opinion  that  the  deed  need  not  provide  for 
the  distribution  of  the  whole  of  the  debtor's  estate  amongst  his 
creditors,(//i)  as  was  required  by  the  corresponding  section  of  the 
act  of  1849.(n) 

An  act  has  also  been  passed  for  facilitating  arrangements  be- 
tween debtors  and  creditors, (o)  which  applies  only  to  such  debtors 
as  are  not  traders  within  the  bankrupt  laws.  Under  this  act  any 
such  debtor,  with  the  concurrence  of  one-third  in  number  and  value 
of  his  creditors,  may,  with  the  sanction  of  a  commissioner  of 

r-..  ^^-,  the  Court  of  Bankruptcy,  and  if  his  debts  have  not  *been 

r  1231  •  1     -' ' 

^     "  -^  improperly  incurred,  procure  two  meetings  of  his  creditors 

to  be  called,  to  consider  any  proposal  for  the  payment  or  compro- 
mise of  his  debts.  And  if  the  major  part  of  the  creditors  in  num- 
ber and  value,  or  nine-tenths  in  value,  or  nine-tenths  in  number 
whose  debts  exceed  twenty  pounds,  at  the  first  meeting,  and  three- 
fifths  in  number  and  value,  or  nine-tenths  in  value,  or  nine-tenths 
in  number  whose  debts  exceed  twenty  pounds,  at  the  second  meet-- 
ing,  agree  to  the  composition,  it  will  be  binding  as  against  all  the 
other  creditors  who  had  notice  of  the  meetings,  provided  it  be 
confirmed  by  the  commissioner,  and  provided  one  full  third  in 
number  and  value  of  all  the  creditors  were  present  at  the  second 
meeting,  either  in  person  or  by  an  authorized  agent. 

This  act  has  recently  been  explained  to  extend  to  debtors  in 

(yfc)  Woods  V.  Foote,  1  H.  &  Colt.  841  ;  Inglebach  v.  Nichols,  14  C.  B.  N.  S.  85,  E.  C.  L. 
R.  vol.  108. 

{/)   King  V.  Kendall,  14  C.  B.  N.  S.  721,  E.  C.  L.  R.  vol.  108. 

(m)  Re  Rawlings,  L.  J.,  9  Jur.  N.  S.  316  ;  Ex  parte  Morgan,  L.  C,  9  Jur.  N.  S.  559. 
But  see  AV alter  v.  Adcock,  7  H.  &  N.  541. 

(»)  Tetley  v.  Taylor,  1  E.  &  B.  521,  E.  C.  L.  R.  vol.  72;  Drew  v.  Collins,  6  Ex.  Rep. 
670  i  March  v.  Warwick,  1  H.  &  N.  158  ;  Macnaught  v.  Russell,  1  H.  &  N.  611  ;  Irving  v. 
Gray,  3  H.  &  N.  34;  Bloomer  v.  Darkes,  2  C.  B.  N.  S.  165,  E.  C.  L.  R  vol.  87  ;  Cruger  v. 
Dunlop,  7  H.  &  N.  625. 

•  (o)  Stat.  7  &  8  Vict.  c.  70.  See  Robins  v.  Hobbs,  9  Hare,  122  ;  Chileote  v.  Kemp,  3  Ex. 
Rep.  514. 


^  See  ante,  p.  117,  note  1. 


OF    BANKRUPTCY   OF   TRADERS. 


217 


custody,  wlio  may  be  discharged  from  custody  whenever  they,  if 
not  in  custody,  would  have  been  entitled,  by  \^rtue  of  the  act,  to 
obtain  protection  from  arrest,  (i:*) 


^CHAPTER    IV. 


[n24] 


OF   BANKRUPTCY   OF   TRADERS.^ 

Under  some  circumstances  a  debtor  is  discharged  by  law  from 
his  debt  without  any  actual  payment,  or  without  payment  of  more 
than  a  part  of  it.     This  occurs  in  the  case  of  bankruptcy. 

(p)  Stat.  23  &  24  Viet.  c.  147. 


1  ' '  Congress  passed  an  act,  April  4th,  1800, 
establishing  a  uniform>system  of  bankruptcy 
throughout  the  United  States.  The  act  was 
limited  to  five  years,  and  from  thence  to  the 
end  of  the  next  session  of  Congress  ;  but  the 
act  was  repealed  within  that  period,  by  the 
act  of  December  19th,  180.3,  and  the  system 
was  not  renewed  until  1841. 

"An  effort  was  made  in  Congress,  in  the 
spring  of  1840,  to  re-establish  a  uniform  sys- 
tem of  bankruptcy,  and  the  subject  received 
an  able  and  thorough  investigation  and  discus- 
sion, but  Congress  could  not  agree  on  the  prin- 
ciples of  the  system,  and  the  eflfort  failed.  The 
bill  which  was  reported  and  debated,  enabled 
debtors  of  every  description  and  class,  to  take 
advantage  of  it  at  their  option,  and  to  be 
thereby  completely  discharged  from  their 
debts,  without  the  co-operation  or  assent  of 
any  creditor.  Some  of  the  members  of  Con- 
gress were  opposed  to  any  bankrupt  system 
on  the  part  of  the  United  States,  as  it  would 
enlarge  the  powers  of  the  Federal  courts  to  a 
great  extent,  and  lead  to  the  creation  of  a 
crowd  of  officers  and  agents  to  administer  it, 


and  probably  to  much  abuse  and  corruption. 
They  preferred  that  the  administration  of 
bankrupt  and  insolvent  laws,  should  remain 
with  the  State  governments.  The  compul- 
sory process  of  bankruptcy  at  the  instance  of 
the  creditor,  was  urged  by  others  as  essential 
to  the  system,  and  that  the  provisions  should 
even  be  extended,  so  as  to  include  corpora- 
tions, instituted  under  State  authority,  for 
banking,  manufacturing,  commercial,  insur- 
ance, and  trading  purposes.  But  this  last 
provision  was  objected  to  as  most  inexpedi- 
ent, if  not  absolutely  beyond  the  purview  of 
the  Constitution.  It  was  apprehended  that 
such  a  power  would  lead  to  infinite  abuse, 
and  become  expensive  and  extremely  op- 
pressive, and  would  tend  to  break  up  all  the 
moneyed  and  business  institutions  created  un- 
der State  laws,  or  render  the  power  of  control 
of  them  most  formidable  and  dangerous.  The 
advocates  of  the  bill  contended  that  bank- 
ruptcy was  a  general  term,  and  meant  failure, 
and  was  equally  applicable  to  all  persons  of 
broken  fortunes ;  that  the  Constitution  was  not 
intended  to  be  bound  to  the  English  system  of 


218 


OF    CHOSES  IN    ACTION. 


The  wliole  of  the  law  of  bankruptcy  was  until  recently  governed 
by  the  act  to  amend  and  consolidate  the  laws  relating  to  bank- 


bankruptcy,  and  that  Congress  had  the  same 
power  as  the  British  Parliiiment,  to  extend 
the  application  of  it,  and  that  it  might  and 
ought  to  extend  it,  to  all  classes  of  debtors  who 
had  become  disabled  and  overwhelmed  in  the 
peculiar  and  severe  calamity  of  the  times; 
that  though  the  assent  of  at  least  a  majority  of 
the  creditors  to  the  debtor's  discharge,  was 
deemed  by  the  New  York  Board  of  Trade,  to 
be  essential  to  the  stability  of  credit,  the 
rights  of  creditors,  the  claims  of  justice,  and 
the  reputation  of  the  country,  it  was  insisted 
upon,  as  a  compensation  for  this  omission, 
that  the  operation  of  the  act  would  be  useful 
to  creditors,  though  the  debtor  should  be  en- 
abled to  obtain  the  benefit  of  a  discharge 
without  their  consent  or  action,  for  it  would 
put  an  end  to  the  pernicious  practice  of 
giving  preference  among  creditors,  and  ena- 
ble the  assets  of  insolvents  to  be  distributed 
equally  among  the  creditors. 

"  The  bil  1  was  strongly  opposed  by  other  mem- 
bers of  Congress,  on  constituiional  grounds, 
reaching  to  the  fundamental  principles  of  the 
bill.  It  was  contended  that  the  power  given 
to  Congress,  to  establish  uniform  laws  on  the 
subject  of  bankruptcy,  was  one  incidental  to 
the  regulation  of  commerce,  and  applicable 
only  to  merchants  and  traders,  or  persons  es- 
sentially engaged,  in  various  w.aysand  modes, 
in  trade  and  commerce.  That  the  term  bank- 
ruptcy was  adopted  in  the  Constitution,  as  it 
stood  defined  and  settled  in  the  English  law, 
where  it  had  a  clear  and  definite  meaning  ; 
that  it  was  universally  taken  and  understood 
in  that  sense,  contemporaneously  with  the 
adoption  of  the  constitution  ;  and  it  received 
that  practical  construction,  and  none  other, 
in  the  bankrupt  act  of  1800  ;  that  the  Eng- 
lish bankrupt  laws  discharged  the  bankrupt 
from  his  debts  and  contracts,  and  were  coer- 
cive on  the  debtor,  and  put  in  action  at  the 
instance  of  creditors,  and  at  their  instance 
only  ;  that  the  proceeding  was  for  the  equal 
benefit  of  all  the  creditors,  and  its  justice  and 
policy,  as  applicable  to  that  class  of  debtors, 
was  founded  on  the  peculiarly  hazardous  busi- 
ness of  trade  and  commerce,  and  the  necessity 
of  large  credits  to  sustain  an  extensive  foreign 


and  domestic  trade  ;  that  there  was  a  marked 
difference  between  bankrupt  and  insolvent 
laws,  in  the  jurisprudence  of  England  and  of 
America,  and  which  had  been  recognized  by 
the  Supreme  Court  of  the  United  States  ;  that 
insolvent  laws  were  left  to  the  cognizance  of 
the  individual  States,  each  of  which  had  its 
own  system  of  insolvent  laws,  and  which  the 
bill  before  the  House  would  entirely  super- 
sede, for  it  was  in  fact  a  general  and  sweeping 
insolvent  law  ;  and  it  was  apprehended,  that 
its  operation  on  credit,  and  the  popular  sense 
of  the  legal  and  moral  obligation  of  contracts, 
would  be  disastrous. 

' '  The  efi'ort  to  establish  a  national  bankrupt 
law,  was  renewed  at  the  next  session  of  Con- 
gress, and  was  successful.  An  act  of  Con- 
gress, "To  establish  a  uniform  system  of 
bankruptcy  throughout  the  United  States," 
was  passed  the  19th  of  August,  1841.  It  was 
declared  to  apply  to  all  persons  whatsoever, 
residing  within  the  United  States,  who  owed 
debts,  not  created  in  consequence  of  a  defal- 
cation as  a  public  officer,  or  as  executor,  ad- 
ministrator, guardian,  or  trustee,  or  while 
acting  in  any  other  fiduciary  character,  and 
who  should  by  petition  on  oath,  setting  forth 
a  list  of  their  creditors,  and  an  inventory  of 
their  property,  apply  to  the  District  Court  for 
the  benefit  of  the  act,  and  declare  themselves 
unable  to  meet  their  debts  and  engagements. 
The  act  was  further  declared  to  apply  to  all 
persons  being  merchants,  or  using  the  trade 
of  merchandise,  and  all  retailers  of  mer- 
chandise, and  all  bankers,  factors,  brokers, 
underwriters,  or  marine  insurers,  owing  debts 
to  the  amount  of  two  thousand  dollars  ;  who 
should  be  liable  to  become  bankrupts,  upon 
petition  of  one  or  more  of  their  creditors 
to  the  amount  of  five  hundred  dollars  ;  pro- 
vided they  had  absconded,  or  fraudulently 
procured  themselves  or  their  property,  to  be 
attached  or  taken  in  execution,  or  had  fraud- 
ulently removed,  or  concealed,  or  assigned, 
or  sold  their  property.  The  bankrupt  when 
duly  discharged,  was  declared  to  be  free  from 
all  his  debts.  The  first  provision  is  a  sweep- 
ing insolvent  law,  and  applies  to  all  debtors, 
and  upon  their  own  voluntary  application  ; 


OF    BANKRUPTCY   OF    TRADERS. 


219 


rupts((2)  which  came  into  operation  on  the  11th  of  Octoher,  1849, 
and  hy  which  all  the  previous  acts  were  repealed.     Of  these  the 


{a)  Stat.  12  &  13  Vict.  c.  106. 


the  second  is  confined  to  merchants  and  trad- 
ers, and  the  act  is  put  in  operation  only  at 
the  instance  of  the  creditors.  The  numerous 
details  of  the  statute,  and  the  many  questions 
which  were  raised,  discussed,  and  decided,  in 
the  District  and  Circuit  Courts  of  the  United 
States,  in  the  execution  of  the  act,  cannot  be 
noticedin  the  limited  space  allowed  in  this 
note,  nor  would  they  be  any  longer  interest- 
ing, since  the  entire  statute  was  repealed  by 
Congress,  on  the  3d  of  March,  1843.  The 
provision  in  the  bankrupt  act,  which  rendered 
it  a  general  insolvent  act,  and  was  the  one 
almost  exclusively  in  operation,  gave  occasion 
to  serious  doubts,  whether  it  was  within  the 
true  construction  and  purview  of  the  Consti- 
tution, and  it  was  that  branch  of  the  statute, 
that  brought  the  system,  and  I  think  justly, 
into  general  discredit  and  condemnation,  and 
led  to  the  repeal  of  the  law.  In  the  cases  of 
Kunzler  v.  Kohans,  and  of  Sackett  v.  An- 
dross,  5  Hill's  N.  Y.  Rep.  317,  327,  the  con- 
stitutionality and  construction  of  the  bank- 
rupt act  of  Congress  of  1841,  was  largely  dis- 
cussed, and  it  was  held  that  the  voluntary,  as 
well  as  the  other  branch  of  the  act,  was  con- 
stitutional, and  applied  as  well  to  debts  cre- 
ated before,  as  after  its  passage.  Mr.  Justice 
Bronsox,  in  a  very  elaborate  opinion,  dis- 
sented from  both  of  these  propositions.  And 
Judge  Wklls,  of  the  United  States  District 
Court  of  Missouri,  in  the  case  of  Edward 
Kleen,  2  N.  Y.  Legal  Observer,  184,  after  a 
very  full  consideration  of  the  subject,  also 
decided  that  the  provision  in  the  act  of  Con- 
gress of  1841,  for  the  discharge  of  a  voluntary 
debtor  from  his  debts  and  future  acquisitions, 
without  payment  or  assent  of  his  creditors, 
was  unconstitutional."' 

The  foregoing  note,  taken  from  Kent's 
Commentaries,  Ac,  vol.  2,  p.  391,  n.  a,  gives 
a  general  view  of  the  provisions  contained  in 
the  repealed  bankrupt  law,  and  its  scope  ;  the 
practical  bearing  of  this  law  is  probably  no 
longer  interesting,  but  for  a  full  consideration 
thereof,  see  "  Owen^  on  Bankruptcy  ;"  "The 
Bankrupt  Law  of  the  United  States,  with  a 
Commentary  containing  a  full  explanation  of 


the  law  of  Bankruptcy,"  published  in  1841, 
in  Philadelphia  ;  a  Note  at  the  end  of  Vol.  2, 
Part  II,  of  "  Starkie  on  Evidence  ;"  and  two 
tracts  published  in  New  York,  in  the  year 
1842,  one  by  J.  B.  Staples,  and  entitled,  "The 
General  Bankrupt  Law,"  &c.,  and  the  other 
by  Geo.  A.  Bicknell,  Jr.,  and  entitled,  "A 
Commentary  on  the  Bankrupt  Law  of  1841, 
showing  its  operation  and  effect. " 

Since  the  publication  of  the  last  American 
edition  of  this  work,  a  renewed  attempt  has 
been  made  to  procure  the  passage  of  a  gen- 
eral bankrupt  act,  embodying  such  provis- 
ions, as  to  create  a  uniform  sj'stem  of  bank- 
ruptcy throughout  the  United  States.  This 
eifort  was  made  during  the  session  of  Con- 
gress of  1861-1862. 

The  proposed  act  was  framed,  upon  a  care- 
ful examination  and  comparison  of  the  pro- 
visions of  the  recent  English  Bankrupt  Act, 
which  went  into  operation  in  October,  18G1, 
the  existing  insolvent  laws  of  the  State  of 
Massachusetts,  the  bankrupt  acts  of  the 
United  States,  of  1800  and  1841,  the  insol- 
vent laws  of  the  State  of  New  York,  and 
other  kindred  statutes.  It  was  thought  that 
it  combined  all  themost  salutary  provisions  of 
these  several  statutes,  so  far  as  they  were  ca- 
pable of  application,  to  a  uniform  system  of 
bankruptcy  in  the  United  States.  It  provi- 
ded for  the  full  and  unconditional  discharge 
of  the  debtor  (except  as  to  certain  fiduciary 
debts) ,  upon  the  surrender  of  his  entire  estate 
for  distribution,  without  preference,  among  all 
his  creditors,  and  upon  his  compliance  with 
the  requirements  of  the  act.  It  provided  for 
the  election  of  the  assignee  in  bankruptcy 
by  the  creditors,  and  gave  them  the  super- 
vision of  the  management  and  winding  up 
of  the  estate,  under  the  direction  of  the 
court.  It  also  permitted,  by  provisions  anal- 
ogous to  the  French  code  of  bankruptcy,  as 
well  as  of  the  English  law,  the  winding  up  of 
bankrupts'  estates,  at  the  option  of  three- 
fourths  in  value  of  the  creditors,  by  trustees, 
under  the  inspection  of  creditors,  in  lieu  of 
the  more  formal  proceedings  in  bankrujjtcy. 
The  various  details  of  the  act  were  designed 


220  OF  cnosES  in  action. 

most  important  was  the  statute  of  6  Geo.  4,  c.  16,  "  An  Act  to 
amend  the  Laws  relating  to  Bankrupts,"  which  had  been  amended 
and  altered  by  various  others, (i)  the  provisions  of  which,  wdth 
some  alterations,  were  consolidated  in  the  act  of  1849.  But  ex- 
tensive alterations  have  now  been  made  by  the  Bankruptcy  Act, 
1861,(e)  inider  which  })ersons  not  in  trade  have  for  the  first  time 
become  liable  to  be  made  bankrupts.  But  as  there  is  still  a  marked 
distinction  between  the  law  of  bankruptcy  as  applied  to  traders 
and  non-traders,  the  present  chapter  will  be  entirely  devoted  to  the 
bankruptcy  of  traders.  Traders  within  the  meaning  of  the  laws 
relating  to  bankrupts  are— all  alum  makers,  apothecaries,  auction- 
eers, bankers,  bleachers,  brokers,  brickmakers,  builders,  calen- 
r*i  orn  derers,  carpenters,  curriers,  cattle  or  *8heep  salesmen,  coach 
proprietors,  cow  keepers,  dyers,  fullers,  keepers  of  inns, 
taverns, hotels,  or  cotFee  houses,  lime  burners,  livery-stable  keepers, 
market  gardeners,  millers,  packers,  printers,  shipowners,  ship- 
wrights, victuallers,  warehousemen,  wharfingers,  scriveners  re- 
ceiving other  men's  moneys  or  estates  into  their  trust  or  custody, 
persons  insuring  against  perils  of  the  sea,  and  all  persons  using 
the  trade  of  merchandise  by  way  of  bargaining,  exchange,  barter- 
ing, commission,  consignment,  or  otherwise  in  gross  or  by  retail, 
and  all  persons  who  either  for  themselves,  or  as  agents  or  factors 
for  others,  seek  their  living  by  buying  or  selling,  or  by  buying  and 
letting  for  hire,  or  b}'  the  workmanship  of  goods  or  commodities. 

(b)  1  &2  Will.  IV,  c.  56;  3  &4  Will.  IV,  c.  47;  1  &2  Vict.  c.  110;  2  Vict.  c.  11  ;  2& 
3  Vict.  c.  29  ;  5  &  6  Vict.  c.  122  ;  7  &  8  Vict.  c.  96  ;  8  &  9  Vict.  c.  48  ;  10  &  11  Vict.  c.  102  ; 
11  &  12  Vict.  c.  86. 

(r)  Stat.  24  &  25  Vict.  e.  134. 

to  give  uniformity  and  efficiency   to  the  sys-  tary  bankruptcy    upon    the   petition    of  the 

teui,  and  to  meet  the  various  exigencies  of  debtor  himself,  and  involuntary  bankruptcy, 

its  administration,  in  the  extended  territory  upon  the  petition  of  one  or  more  of  the  cred- 

to  which  it  wiis  to  apply.  itors  of  the  bankrupt,  under  the  regulations 

The  project,  however,  failed   to  meet  with  therein    prescribed  ;     but  limiting    the  dis- 

the  requisite  support,  and  the   proposed  act  charge  of  a  debtor  to  his  first  bankruptcy, 

did  not  become  a  law.  unless    under    a   second  bankruptcy,   he  ob- 

Repeated   eflForts  have  been  made  at  subse-  tains  the  consent   of  three-fourths  in  value 

quent   sessions   of   Congress,  to  procure  the  of    his   creditors,    or  can  prove  payment  of 

passage   of  a  bankrupt  bill,    but  these   also  all  debts   owing  by  him  at  the  time  of  his 

were  unsuccessful.  previous  discharge. 

A  bill  has  also  been   reported   at  the  pres-  For  the  law  of  Bankruptcy,  see  Hilliard  on_ 

ent  session    of   Congress    (1865-1866),    con-  Bankruptcy  and  Insolvency,  whose  Treatise 

taining    the   essential    features   of   the    bill  on  these  subjects,  embodies  the  principles   of 

above  referred  to,  and   providing  for  volun-  both  English  and  American  decisions. 


OF    BANKRUPTCY    OF    TRADERS.  221 

But  no  farmer,  grazier,  common  laborer,  or  workman  for  hire, 
receiver-general  of  the  taxes,  or  member  of  or  subscriber  to  any 
incorporated  commercial  or  trading  companies  established  by 
charter  or  act  of  Parliament,  shall  be  deemed  as  such  a  trader  liable 
to  become  bankrupt.((i)  An  attorney  or  solicitor,  as  such,  is  not  a 
trader  within  the  bankrupt  law ;  but  if  he  is  in  the  habit  of  receiv- 
ing his  clients'  money  into  his  own  hands  and  investing  it  for  them, 
and  charging  a  compensation  for  so  doing,  in  addition  to  his  charges 
for  other  professional  business,  he  will  be  liable  to  become  bank- 
rupt as  a  scrivener  receiving  other  men's  moneys  into  his  trust.(e) 
An  alien  or  denizen  is  within  the  bankrupt  law;(/)  and  so  is  a 
married  woman  carrying  on  trade  for  her  separate  use  by  the 
custom  of  London, (^)  or  whilst  her  husband  is  undergoing  sentence 
of  transportation. (A)  But  an  infant  under  the  age  of  twenty-one 
years  cannot  '^be  a  bankrupt,  because  by  the  law  of  Eng- 
land  he  cannot  be  made  liable  on  contracts  entered  into  by  "-  -• 
him  in  the  course  of  trade.(i) 

A  person  within  the  bankrupt  laws  becomes  bankrupt  by  com- 
mitting an  act  of  bankruptcy.  The  following  acts,  if  done  with 
intent  to  defeat  or  delay  the  creditors  of  a  trader,  are  acts  of  bank- 
ruptcy, namely,  if  any  such  trader  shall  depart  this  realm,  or  being 
out  of  this  realm  shall  remain  abroad,  or  depart  from  his  dwelling- 
house,  or  otherwise  absent  himself,  or  begin  to  keep  his  house,  or 
suffer  himself  to  be  arrested  or  taken  in  execution  for  any  debt  not 
due,  or  yield  himself  to  prison,  or  suifer  himself  to  be  outlawed, 
or  procure  himself  to  be  arrested  or  taken  in  execution,  or  his 
goods,  moneys,  or  chattels  to  be  attached,  sequestered,  or  taken  in 
execution,  or  make  or  cause  to  be  made,  either  within  this  realm 
or  elsewhere,  any  fraudulent  grant  or  conveyance  of  any  of  his 
lands,  tenements,  goods,  or  chattels,  or  make  or  cause  to  be  made 
any  fraudulent  surrender  of  any  of  his  copyhold  lands  or  tene- 
ments, or  make  or  cause  to  be  made  any  fraudulent  gift,  delivery, 

(d)  Stat.  12  &  13  Vict.  c.  106,  s.  66. 

ifi)  Malkin  v.  Adams,  2  Rose,  28 ;  Ex  parte  Bath,  Mont.  82,  84,  where  the  cases  are  col- 
lected. See,  also,  Wilkinson  v.  Candiish,  5  Exeh.  Rep.  91,  97;  Ex  parte  Dufaur,  2  De  Gex, 
M.  &  G.  246. 

(/•)  .Stat.  12  &  13  Vict.  «.  106,  s,  277. 

(g)  Ex  parte  Carrington,  1  Atk.  206. 

(/t)  Ex  parte  Franks,  7  Bing.  762,  E.  C.  L.  R.  vol.  20  ;  1  M.  &  Scott,  1. 

(t)    Belton  V.  Hodges,   9  Bing.  305,  370,  E.  C.  L.  R.  vol.  23. 


222  OF    CHOSES   IN   ACTION. 

or  transfer  of  any  of  liis  goods  or  chattels.(A)  It  is  also  an  act  of 
bankruptcy  for  a  trader  to  lie  in  prison  for  debt  for  fourteen  days, 
or,  having-  been  committed  or  detained  for  debt,  to  escape  out  of 
prison  or  custody.(/)  But  it  is  now  provided  that  no  debtor  shall 
be  adjudged  bankrupt  on  the  ground  of  having  lain  in  prison  as 
aforesaid,  unless,  having  been  summoned,  he  shall  not  otfer  such 
security  for  the  debt  in  respect  of  which  he  is  imprisoned  or  de- 
r*l  071  ^^^^^^  ^^  *^^^  commissioner  or  registrar,  whose  duty  *it 
*-  "  -■  would  otherwise  be  to  adjudicate,  shall  deem  reasonably 
suiiicient.(???^) 

Most  of  the  above  acts  of  bankruptcy  have  been  such  ever 
since  a  bankrupt  was  first  defined  by  the  statute  of  Elizabeth 
"  touching  orders  for  bankrupts."(w)  Bankruptc}^  was  then  con- 
sidered as  a  crime,  and  the  bankrupt  was  called  "  an  ofi:ender."(o) 
But  in  modern  times  bankruptcy  has  been  looked  upon  as  the 
proper  remedy  for  a  trader  in  embarrassed  circumstances.  lie 
gives  up  all  his  property  to  his  creditors,  to  be  divided  ratably 
amongst  them ;  and,  if  his  behavior  has  been  free  from  serious 
blame,  he  obtains  a  discharge  from  past  liabilities,  together  with 
a  small  allowance  to  enable  him  to  begin  the  world  again. (^j) 
An  act  of  bankruptcy  may  accordingly  now  be  committed  by 
merely  filing,  in  the  ofiice  of  the  chief  registrar,  or  with  the 
registrar  of  a  district  court  of  bankruptcy,  or  of  a  county  court 
having  jurisdiction  in  bankruptcy,  a  formal  declaration  signed  by 
the  debtor,  and  attested  by  a  registrar  of  the  court,  or  by  an  at- 
torney or  solicitor,  that  he  is  unable  to  meet  his  engagements, 
provided  a  petition  for  adjudication  of  bankruptcy  be  filed  within 
two  calendar  months.(g')  And  a  petition  for  adjudication  of  bank- 
ruptcy, under  which  the  debtor  is  now  declared  bankrupt, (r)  may 
be  filed  by  any  debtor  against  himself;  and  the  filing  of  such  pe- 
tition is  now  an  act  of  bankruptcy,  without  any  previous  declara- 
tion of  insolvency  by  such  debtor.(5)     But  every  debtor  petition- 

(/?■)  Stat.  12  &  13  Vict.  c.  106,  s.  67  ;  Ex  parte  Bland,  6  De  Ges,  M.  &  G.  757  ;  Johnson 
V.  Fesenmeyer,  25  Beav.  88  ;  3  De  Gex  &  Jones,  13  ;  Pennell  v.  Reynolds,  11  C.  B.,  N.  S. 
709,  E.  C.  L.  R.  vol.  103. 

(/)   Stat.  24  &  25  Vict.  c.  134,  s.  71.  (w)   Stat.  13  Eli#.  c.  7. 

(m)  Stat.  24  &  25  Vict.  c.  134,  s.  71. 

(o)  Stat.  13  Eliz.  c.  7,  s.  10  ;  2  Black.  Com.  471. 

(p)   Post,  p.  143.  (r)   Stat.  12  &  13  Vict.  c.  106,  S.-89. 

(q)  Stat.  24  &  25  Vict.  c.  134,  s.  72.  («)   Stat.  24  &  25  Vict.  c.  134,  s.  86. 


OF   BANKRUPTCY   OF    TRADERS.  223 

ing  against  liimself  ninst  file  in  conrt  a  full,  true,  and  accurate 
statement,  verified  by  the  oath  of  the  petitioner,  of  his  debts  and 
^liabilities  of  every  kind,  and  of  the  names  and  residences  ^,  ^  ^^^ 
of  his  creditors,  and  of  the  causes  of  his  inability  to  meet  •-  -  J 
his  engagements,  within  three  da^'S  after  filing  his  petition. (^)  So 
an  act  of  bankruptcy  may  now  be  lawfully  concerted  or  agreed 
upon  between  the  bankrupt  and  any  creditor  or  other  person,(M) 
which  was  not  the  case  at  the  time  when  bankruptcy  was  con- 
sidered an  offence,  (z) 

"We  have  ah-eady  seen  that  the  seizure  and  sale  of  the  goods  of 
a  trader  under  an  execution  upon  any  judgment  in  a  personal 
action  for  the  recovery  of  an}^  debt  or  money  demand  exceeding 
fifty  pounds  is  an  act  of  bankruptcy. (^)  The  filing  of  a  petition 
by  or  against  a  debtor  in  any  court  having  jurisdiction  for  the 
relief  of  insolvent  debtors  in  insolvency  or  bankruptcy  in  any  of 
her  majesty's  dominions,  colonies,  or  dependencies,  and  the  adju- 
dication of  an  act  of  insolvency  or  bankruptcy  on  such  petition, 
is  also  evidence  of  an  act  of  bankruptcy. (2:)  An  act  of  bank- 
ruptcy may  also  be  committed  by  non-payment  after  what  is 
called  a  judgment  debtor  summons.  Every  judgment  creditor 
who  is  entitled  to  sue  out  a  writ  of  capias  ad  satisfaciendum[a) 
against  the  debtor  in  respect  of  any  debt  amounting  to  50/.,  ex- 
clusive of  costs,  may  at  the  end  of  one  w^eek  from  the  signing  of 
judgment  sue  out  against  any  trader,  whether  he  be  in  custody 
or  not,  a  summons  called  a  judgment  debtor  summons,  requiring 
him  to  appear,  and  to  be  examined  respecting  his  ability  to  pay 
the  debt.(6)  In  like  manner,  where  any  decree  or  order  of  a 
court  of  equity,  or  order  in  bankruptcy,  *insolvency,  or  p-;.-,f,A-| 
lunacy,  directing  the  payment  of  money,  is  disobeyed  by  ^  ^  ^ 
the  debtor,  after  having  been  duly  served  on  him,  and  the  person 
entitled  to  the  money,  or  interested  in  enforcing  payment  of  it, 
has  obtained  a  peremptory  order  fixing  a  day  for  payment,  and 
the  debtor,  being  a  trader,  shall  not  within  seven  days  after  ser- 

(t)   Stat.  24  &  25  Vict.  c.  134,  s.  93.     Gen.  Order  in  Bankruptcy,  Oct.  1861,  schedule  5. 

(u)  Stat.  12  &  13  Vict.  c.  106,  s.  115. 

(x)   Ex  parte  Gouthwaite,  1  Rose,  87  ;  Ex  parte  Brookes,  Buck.  257. 

(y)   Stat.  24  &  25  Vict.  c.  134,  s.  73,  ante,  p.  98. 

(z)   Sect.  75. 

(a)  See  ante,  p.  100.  (h)  Stat.  24  &  25  Vict.  c.  134,  s.  76. 


224  OF   CHOSES   IN   ACTION. 

vice  on  him  of  the  peremptoiy  order,  or  withiu  seven  days  after 
the  day  fixed  by  the  peremptory  order  for  payment  (which  shall 
last  happen),  pay  the  money,  or  secure,  or  tender,  or  compound 
for  it,  to  the  satisfaction  of  the  creditor,  the  creditor  may  at  the 
end  of  those  seven  days  sue  out  against  the  debtor  a  judgment 
debtor  summons.((?)  This  summons  must  be  served  on  the  debtor 
personally,  if  he  be  in  England,  unless  the  court  issuing  the  same 
should  direct  that  service  in  some  other  manner  should  be  good 
service. (t?)  Upon  the  appearance  of  the  debtor,  he  may  be  ex- 
amined on  oath  by  or  on  behalf  of  the  creditor  and  by  the  court 
respecting  his  ability  to  satisfy  the  debt,  and  for  the  discovery  of 
property  applicable  in  that  behalf;  and  he  must  produce  on  oath 
or  otherwise  his  books  and  papers  relating  to  his  property  as  the 
court  shall  think  fit.(e)  And  if  after  service  of  such  summons  the 
debtor  shall  not  pay  the  debt  and  costs,  or  secure  or  compound 
for  the  same  to  the  satisfaction  of  the  creditor,  the  court  may  on 
the  appearance  of  the  debtor,  or  if  he  shall  not  appear,  having  no 
lawful  impediment  allowed  by  the  court,  adjudge  him  bankrupt; 
and  where  the  debtor  has  not  appeared,  notice  of  such  adjudica- 
tion is  to  be  served  upon  him  in  the  same  manner  as  is  provided 
with  respect  to  service  of  the  summons.(/)  The  debtor  is  then 
allowed  seven  days  from  such  notice,  or  such  further  time  as  the 
court  shall  think  fit,  for  appearing  to  show  cause  against  the  ad- 
■-  ^^^-,    indication:  and  if  he  ^appear  vdthin  the  time  allowed, 

r  1301  0  ^  i^  i 

'-  -^  and  show"  sufficient  cause,  the  adjudication  may  be  an- 
nulled; otherwise  at  the  end  of  the  time  allowed,  or  on  the  judg- 
ment of  the  court  against  the  sufiiciency  of  the  cause  shown,  the 
adjudication  will  become  absolute,  and  notice  thereof  is  to  be 
forthwith  given  in  the  London  Gazette  ;  and  the  adjudication 
will  relate  back  to  the  service  of  the  summons  or  the  insertion  of 
the  first  notice  in  the  London  Gazette,  as  the  case  may  be.(_9') 

The  act  of  1849,  contains  a  further  provision,  that  on  a  proper 
affidavit  of  debt  being  made  by  any  creditor,  stating,  amongst 
other  things,  the  delivery  to  the  trader  personally,  or  to  some 
adult  inmate  at  his  usual  or  last  known  place  of  abode  or  busi- 
ness, of  Avritten  particulars  of  his  demand,  with  notice  requiring 

(f)  Stat.  24  &  25  Vict.  c.  134,  s.  77.  (/)  Sect.  83. 

{d)  Sect.  79.  (ff)   Stat.  24  &  25  Vict.  c.  134,  s.  84. 

'e)  Sect.  82. 


OF    BANKRUPTCY    OF    TRADERS.  225 

immediate  payment,  such  trader  may  be  summoned  to  appear 
before  tbe  bankrupt  court  either  to  admit  the  demand,  or  to  swear 
that  he  verily  beheves  that  he  has  a  good  defence  to  sucli  demand 
or  to  some  part  of  it.  And  in  such  case  the  court  is  empowered 
to  require  the  trader  to  enter  into  a  bond  with  two  sureties  to  pay 
such  sum  as  shall  be  recovered,  together  with  such  costs  as  shall 
be  given  in  any  action  which  shall  have  been  or  shall  be  brought 
for  the  recovery  of  such  demand  or  any  part  thereof  (A)  And  if 
he  admits  the  demand,  and  does  not  satisty  the  creditor  within 
seven  days  next  after  the  filing  of  such  admission,  he  commits 
an  act  of  bankruptcy  on  the  eighth  day  after  the  filing  of  such 
admission,  provided  a  petition  for  adjudication  of  bankruptcy  be 
filed  ao-ainst  him  within  two  calendar  months  from  the  filing  of 
the  creditor's  afiidavit.(?)  After  such  a  summons,  an  admission 
of  debt  may  be  made  with  the  same  effect,  without  the  trader's 
appearing  *in  court,  provided  it  be  made  in  the  prescribed 
form,  and  there  be  present  some  attorney  of  one  of  her  L  "^  J 
majesty's  superior  courts  of  law  on  behalf  of  such  trader,  ex- 
pressly named  by  him  and  attending  at  his  request,  to  inform 
him  of  the  eifect  of  such  admission  before  the  same  is  signed  by 
him,  and  pro\dded  also  that  such  attorney  do  subscribe  his  name 
thereto  as  a  witness  to  the  due  execution  thereof,  and  in  such 
attestation  declare  himself  to  be  attorney  for  the  said  trader,  and 
state  therein  that  he  subscribes  as  such  attorney.(A;)  If  the  trader 
do  not  appear  when  summoned,  or  if  on  appearing  he  refuse  to 
sign  the  admission  of  debt,(/)  or  admit  only  part,  without  swear- 
ing to  his  belief  that  he  has  a  good  defence  to  the  debt  or  to  the 
part  not  admitted,  and  if  required  by  the  court  enter  into  such  a 
bond  as  is  mentioned  above,  then  he  commits  an  act  of  bank- 
ruptcy on  the  eighth  day  after  service  of  the  summons,,  unless 
within  seven  days  from  such  service,  or  within  such  enlarged 
time  as  may  be  granted  to  him,  he  satisfies  the  creditor,  or 
enters  into  a  bond  with  two  sureties,  to  be  approved  by  the 
court,  to  pay  such  sum  and  costs  as  shall  be  recovered  in  any 
action  for  the  debt;  but  the  petition  for  adjudication  of  bank- 
ruptcy must  be  filed  within  two  calendar  months  from  the  filing 

(h)  Stat.  12  &  13  Vict.  c.  106,  ss.  78,  79  ;  see  Ex  parte  Wood,  4  De  Gex,  M.  A  G.  875.. 

(t)  Sect.  81. 

(it)  Stat.  12  &  1.3  Vict.  c.  106,  s.  84.  (/)   Sect.  83. 

15 


226  OF  cnosES  in  action. 

of  tliG  creditor's  afficlavit.(m)  No  person  is  now  liable  to  become 
bankrupt  by  reason  of  any  act  of  bankrnptey  committed  more 
than  twelve  calendar  months  prior  to  the  tiling  of  any  petition 
for  adjudication  of  bankruptcy  against  him.(/;) 

When  an  act  of  bankruptcy  has  been  committed  by  a  trader, 
any  creditor  or  creditors  may  petition  the  Court  of  Bankruptcy 
for  an  adjudication  of  bankruptcy  against  him,  provided  the 
amount  of  their  debts  be  as  follows:  the  debt  of  any  single 
creditor,  or  of  two  or  more  being  *partners,  50^.  or  up- 
'-  "-^  w^ards;  the  debt  of  two  creditors,  701.  or  upwards;  and 
the  debt  of  three  or  more  creditors,  100^.  or  upwards;  and  every 
person  w^ho  has  given  credit  to  any  trader  upon  valuable  con- 
sideration for  any  sum  payable  at  a  certain  time,  which  time 
shall  not  have  arrived  when  such  trader  committed  an  act  of 
bankruptcy,  may  petition  or  join  in  petitioning,  whether  he  shall 
have  any  security  for  such  sum  or  uot.(o)  The  debt,  however, 
must  be  a  legal  debt,  and  one  for  which  the  creditor  might  sue 
at  law  in  his  own  name.(jo)  The  truth  of  the  petition  is  sworn 
to  by  the  petitioning  creditor;  and  immediately  after  it  is  filed, 
in  the  case  of  a  debtor  petitioning  against  himself,  and  after 
adjudication,  in  the  case  of  a  petition  filed  against  a  debtor  who 
shall  be  adjudged  bankrupt,  the  bankrupt  personally,  and  all  his 
estate  and  effects  of  what  nature  or  kind  soever  become  subject 
to  the  law^  of  bankruptcy. (g)  If  the  petitioning  creditor  shall  not 
proceed  and  obtain  adjudication  within  three  days  after  his  peti- 
tion shall  have  been  filed,  or  within  such  extended  time  as  shall 
be  allowed  by  the  court,  the  court  may  at  any  time,  on  the  expi- 
ration of  such  three  days,  or  of  such  extended  time,  as  the  case 
may  be,  upon  the  petition  of  any  other  creditor  to  the  amount  re- 
quired to  constitute  a  petitioning  creditor,  proceed  to  adjudicate 
on  such  last-mentioned  petition.  And  if  a  debtor,  petitioning 
against  himself,  does  not  obtain  adjudication  within  twenty-four 
hours  after  filing  such  petition,  the  court  may  proceed  to  adjudge 
the  debtor  a  bankrupt  on  the  petition  of  any  competent  cred- 

(w)  Sects.  80,  82  ;  see  Oldfield  v.  Dodd,  8  Ex.  Rep.  578  ;  S.  C.  17  Jur.  261. 

(91.)   Sect.  88. 

(o)    Stat.  24  &  25  Vict.  c.  134,  s.  89. 

{p)   Medlicot's  Case,  2  Str.  899  ;  Ex  parte  Sutton,  11  Ves.  163. 

iq)   Stat.  24  &  25  Vict.  c.  134,  s.  87. 


OF   BANKRUPTCY   OF    TRADERS.  227 

itor.(r)  In  the  computation  of  debts  for  the  purposes  of  any  such 
petition,  there  shall  be  reckoned  as  debts  sums  due  to  creditors 
liolding  mortgages  or  other  available  securities  or  liens,  af-  ^ 
ter  deducting  *the  value  of  the  property  comprised  in  such  '-  ^ 
mortsrag-es,  securities,  or  liens,  and  such  interest  and  costs  as  shall  be 
due  in  respect  of  any  of  the  debts ;  but  there  shall  not  be  reckoned 
the  amount  of  the  debts  in  respect  of  which  the  petitioner  has  al- 
ready taken  the  benefit  of  insolvency,  protection,  or  bankruptcy,  or 
debts  barred  by  any  statute  of  limitations. (6-)  The  words  taking 
the  benefit  of  insolvency,  &c.,  appear  in  this  place  to  be  used  for 
taking  dividends  under  any  such  insolvency,  &c.  If  the  trader 
shall,  after  the  filing  of  a  petition  for  adjudication  of  bankruptcy 
against  him,  pay  to  the  petitioning  creditor  any  money,  or  give 
him  any  satisfaction  or  security  for  his  debt,  or  any  part  thereof, 
whereby  he  may  receive  more  in  the  pound  in  respect  of  his  debt 
than  the  other  creditors,  such  trader  thereby  commits  an  act  of 
bankruptcy;  and  if  adjudication  of  bankruptcy  shall  have  been 
made  under  such  petition,  the  court  may  either  declare  such  ad- 
judication to  be  valid,  and  direct  the  same  to  be  proceeded  in,  or 
may  order  it  to  be  annulled,  and  a  new  petition  for  adjudication 
may  be  filed,  which  may  be  supported  by  proof  either  of  such 
last-mentioned  or  of  any  other  act  of  bankruptcy. (^) 

Formerly  a  commission  of  bankruptcy  under  the  great  seal 
issued  in  every  case,  whereby  certain  persons  were  appointed  com- 
missioners for  the  purpose  of  directing  that  particular  bank- 
ruptcy.(M)  Subsequently  a  Court  of  Bankruptcy  was  erected  in 
London,  and  certain  fixed  commissioners  appointed,  by  any  one 
of  whom  the  duties  of  a  commissioner  were  to  be  performed  in 
all  cases  of  bankruptcies  in  London. (x)  The  creditor  presented 
a  formal  petition  to  the  Lord  Chancellor,  whereupon  a  fiat  in  bank- 
ruptcy issued,  whereby  the  *creditor  was  authorized  to  [-*-jq4-] 
prosecute  his  complaint  against  the  trader  in  the  Court  of  ^ 
Bankruptcy,  or  before  one  of  the  commissioners  of  that  court.(?/) 
And  more  recently  fixed  commissioners  were  appointed  throughout 

(r)   Sect.  96.  (0   Stat.  12  &  13  Vict.  c.  106,  s.  71. 

(s)  Stat.  24  &  25  Vict.  c.  134,  s.  97. 

(It)   Stut-s.  13  Eliz.  c.  7,  s.  2;  6  Geo.  IV,  c.  16,  s.  12. 

{X)  Stat.  1  &  2  Will.  IV,  c.  56. 

(y)  Stat.  1  A  2  Will.  IV,  c.  56,  s.  12. 


228  OF   CHOSES    IN    ACTION. 

the  country,  each  of  whom  had  a  separate  district,  and  formed  a 
court  of  record. (^)  But  by  the  Bankruptcy  Act,  1861,  jurisdiction 
in  bankruptcy  is  now  vested  in  the  judges  of  the  County  Courts, 
except  those  of  the  metropolis.(a)  And  provision  has  been  made 
for  the  reduction  of  the  number  of  the  Loudon  commissioners  to 
three.(6)  And  lier  Majesty  is  empowered,  upon  any  vacancy  in 
the  office  of  county  commissioner,  to  transfer,  by  order  in  Coun- 
cil, the  jurisdiction  of  such  commissioner  to  any  of  the  judges  of 
the  County  Courts  within  the  district. (c) 

The  fiat  was  aboUshed  by  the  act  of  1849 ;  and  tlie  debt,  the 
trading,  and  the  act  of  bankruptcy  liaving  been  proved,  the  trader 
is  adjudged  a  bankrupt  by  the  couH  to  which  the  petition  is  pre- 
sented ;(o^  and  a  duplicate  of  the  adjudication  is  then  served  on 
the  bankrupt,  who  is  allowed  seven  days,  or  such  further  time  as 
the  court  shall  think  fit,  to  show  cause  against  the  adjudication ; 
and  if,  at  the  expiration  of  that  time,  he  can  show  no  cause,  or  if 
the  court  adjudge  the  cause  shown  to  be  insufficient,  notice  of  the 
adjudication  is  forthwith  advertised  in  the  London  Gazette.  But 
notice  of  the  adjudication  may  be  advertised  immediately,  with 
the  consent  of  the  bankrupt  testified  in  writing  under  his  hand 
before  the  court. (e) 

*K  the  bankrupt  do  not  commence  proceedings  to  dis- 
*-  -^  pute  the  petition  for  adjudication,  and  prosecute  the  same 
with  diligence  and  effect  within  two  calendar  months  after  the 
advertisement  (if  he  were  within  the  L^nited  Kingdom  at  the  date 
of  the  adjudication),  or  within  three  calendar  months  (if  in  any 
other  part  of  Europe),  or  within  a  twelvemonth  (if  elsewhere) ; 
the  Gazette  containing  the  advertisement  is  conclusive  evidence 
in  all  cases  as  against  such  bankrupt,  and  in  all  actions  by  his 
assignees  for  his  debts,  that  he  became  a  bankrupt  previously  to 
the  date  and  filing  of  the  petition  for  adjudication,  and  that  the 
petition  was  filed  on  the  day  stated  in  the  Gazette.(/) 

(z)   stats.  5  &  6  Vict.  o.  122,  s.  59  et  seq.;  12  k  13  Vict.  c.  lOfi,  ss.  6-11. 

(a)  Stat.  24  k  25  Vict.  c.  134,  s.  3. 

(b)  Sect.  2.  (c)  Sect.  4. 

(d)  Stats.  12  &  13  Vict.  c.  106,  s.  101  ;  24  &  25  Vict.  c.  134,  ss.  83,  84. 

(e)  Stat.  12  &  13  Vict.  o.  106,  s.  104. 

(/■)  Stats.  12  A  13  Vict.  c.  106,  s.  233  ;   17  <Jc  18  Vict.  c.  119,  s.  24. 


OF    BANKRUPTCY    OF    TRADERS.  229 

The  official  assignees  are  officers  of  the  Bankruptcy  Court,  one 
of  whom  is  appointed  by  the  court  to  act  for  every  bankruptcy. 
His  duty  formerly  was  to  receive  all  the  personal  estate  and  effects, 
and  the  rents  and  profits  of  the  real  estate,  and  the  proceeds  of 
the  sale  of  the  estate  and  effects,  real  and  personal,  of  the  bank- 
rupt ;  and  after  the  appointment  of  the  creditors'  assignees,  he 
continued  to  be  an  assignee  jointly  with  them.  But  it  is  now 
provided,  that  at  the  appointment  of  the  creditors'  assignee,  all 
the  estate,  both  real  and  personal,  of  the  bankrupt  shall  be  devested 
out  of  the  official  assignee  and  vested  in  the  creditors'  a8signee.((/) 
And  the  official  assignee  is  forthmth  to  render  to  the  creditors' 
assignee  a  full  and  particular  account  or  balance  sheet  of  the  bank- 
rupt's estate,  and  of  all  receipts,  payments,  and  other  transactions 
of  such  official  assignee  ;  and  also  a  list  of  all  the  creditors  of  the 
bankrupt  who  have  proved  their  debts  against  the  estate.(A)  The 
manao-ement  of  the  estate  is  then  vested  in  the  creditors'  assignee  ; 
except  as  to  debts  due  to  the  estate,  *not  exceeding  £10,  p^^Afil 
as  to  which  the  official  assignee  is  to  be  deemed  the  sole  •- 
assignee  of  the  estate,  notwithstanding  the  appointment  of  a 
creditors'  assignee. (z) 

As  soon  as  conveniently  may  be  after  adjudication  shall  have 
become  absolute,  the  court  appoints  a  meeting  of  the  creditors,  of 
which  ten  days'  notice  is  to  be  given  in  the  London  Gazette,  and 
which  meeting  is  held  at  such  time  and  place  as  the  court  appoints; 
and  at  such  meeting,  a  registrar  or  such  other  person  as  the  court 
appoints  for  that  purpose  presides,  and  receives  the  proofs  of  the 
debts  of  the  creditors. (A)  But  proof  of  debts  may  also  be  made 
after  adjudication,  by  a  declaration  thereof  in  due  form  signed  by 
the  creditor,  and  delivered  or  sent  through  the  General  Post  to 
the  official  or  creditors'  assignee,  as  the  case  may  he.{l)  Proof 
may  also  be  made  by  deposition  in  court,  or  in  chambers,  or  before 
a  registrar  at  any  meeting  of  creditors  elsewhere  than  in  court, 
and  in  some  cases  by  the  affidavit  of  a  clerk  or  other  person  in 
the  creditors'  employment.(m) 

As  the  bankrupt  is  discharged  from  such  claims  only  as  have 

(g)  Stat.  24  &  25  Vict.  c.  134,  e.  117.  (k)  Sect.  109. 

(A)   Sect.  118.  {I)   .Sect.  144. 

(2)   Stat.  24  &  25  Vict.  c.  134,  .s.  128.  •  {m)  Sect.  140. 


230  OF    CHOSES   IN   ACTION. 

been  or  might  have  been  proved  under  the  bankruptcy,  provision 
has  been  made  for  the  proof  of  as  many  demands  as  possible. 
Thus  a  security,  payable  at  a  future  time,  may  be  proved  with  a 
rebate  of  interest  at  the  rate  of  five  per  cent.,  to  be  computed 
from  the  declaration  of  a  dividend  to  the  time  at  which  the  debt 
secured  would  have  become  payable  according  to  the  terms  upon 
which  it  was  contracted. (//)  Provision  is  also  made  for  the  set-off* 
of  mutual  credits  or  debts  between  the  bankrupt  and  any  creditor, 
r*i^7l  ^^  ^^^*  *^^  balance  only  shall  be  claimed  or  *paid  on 
■-  -*  either  side  ;(o)  also  for  the  proof  of  any  debt  by  any  surety 
by  the  bankrupt  who  may  have  paid  it,  although  after  the  filing 
of  the  petition  for  adjudication  of  bankruptcy,  but  not  so  as  to 
disturb  former  dividends,(|))  Persons  insured  may  also  prove 
after  the  happening  of  the  loss,  and  may  receive  dividends  with 
the  other  creditors,  as  if  the  loss  had  happened  before  the  filing 
of  the  petition. (7)  Annuity  creditors  may  also  prove  for  the 
value  of  their  annuities,  to  be  ascertained  by  the  court,  regard 
being  had  to  the  original  price ;(?-)  and  if  there  should  be  any 
collateral  surety  for  the  annuity,  he  will  be  discharged  from  all 
claims  in  respect  of  the  annuity  on  payment  of  the  amount  so 
proved.(5)  Debts  payable  upon  contingencies  which  shall  not 
have  happened  before  the  issuing  of  the  fiat  may  be  valued  by 
the  court  on  the  application  of  the  creditor,  and  the  amount  so 
ascertained  may  be  proved  as  the  debt.(^)  It  is  also  provided, 
that  if  the  bankrupt  shall  have  contracted,  before  the  filing  of  the 
petition,  a  liability  to  pay  money  upon  a  contingency  which  shall 
not  have  happened,  and  the  demand  in  respect  thereof  shall  not 
bave  been  ascertained  before  the  filing  of  such  petition,  then,  if 
the  liability  be  not  otherwise  provable,  the  person  with  whom 
such  liability  has  been  contracted  shall  be  admitted  to  claim  for 
such  sum  as  the  court  shall  think  fit ;  and  after  the  contingency 
shall  have  happened,  and  the  demand  in  respect  of  such  liability 
shall  have  been  ascertained,  he  shall  be  admitted  to  prove  such 
demand,  and  receive  dividends  with  the  other  creditors,  and,  so 
far  as  practicable,  as  if  the  contingency  had  happened  and  the 
demand  had  been  ascertained  before  the  filing  of  such  petition, 

(w)   Stat.  12  A  l.T  Vict.  c.  106,  s.  172. 

(o)   Stat.  12  &  13  Vict.  0.  106,  s.  171.  (r)  Sect.  175. 

(p)  Sect.  173.  (s)  Sect.  176. 

(y)   Sect.  174.  (t)  Sect.  177. 


OF   BANKRUPTCY   OF   TRADERS.  231 

but   not   disturbing   former   dividends ;    provided   such   person 
*had  not,  at  the  time  sucli  liability  was  contracted,  notice  r^-,qo-i 
of  any  act  of  bankruptcy  by  such  bankrupt  committed ; 
provided  also,  that  where  any  such  claim  shall  not  have,  either  in 
whole  or  in  part,  been  converted  into  a  proof  within  six  calendar 
months  after  the  filing  of  the  petition,  it  may,  upon  the  applica- 
tion of  the  assignees  at  any  time  afterwards,  and  if  the  court  shall 
think  fit,  be  expunged  either  in  whole  or  in  part,  from  the  pro- 
ceedings, (m)     Interest  on  overdue  bills  and  notes  may  also  be 
proved  ;(a:)  also  the  costs,  though  untaxed,  of  obtaining  any  judg- 
ment, decree,  or  order,  which  may  have  been  made  for  any  debt 
or  demand,  in  respect  of  which  the  plaintiff  or  petitioner  shall 
prove  under  the  bankruptcy.(3/)    And  it  is  now  further  provided, 
that  a  person  entitled  to  enforce  against  the  bankrupt  payment 
of  any  money  or  costs  by  process  of  contempt  issuing  out  of  any 
court,  may  come  in  as  a  creditor  under  the  bankruptcy  for  the 
amount  payable  under  the  process,  subject  to  the  amount  being 
ascertained  by  taxation  or   otherwise. (2:)     And   in  all  cases  in 
which  the  bankrupt  is  liable  to  pay  any  rent  or  other  payment 
falling  due  at  fixed  periods,  the  person  entitled  thereto  may  prove 
for  a  proportionate  part  thereof,  up  to  the  day  of  the  adjudication 
of  bankruptcy,  in  such  manner  as  if  the  said  rent  or  payment 
grew  due  from  day  to  day. (a)     If  the  bankrupt  shall  have  con- 
tracted any  debt  payable  by  instalments,  the  creditor  may  prove 
for  the  amount  of  such  instalments  remaining  unpaid  at  the  time 
of  the  petition.(6)     And  if  the  bankrupt  is  liable,  by  reason  of 
any  contract  or  promise,  to  a  demand,  in  the  nature  of  damages, 
which  have  not  been  and  cannot  be  otherwise  *liquidated  ^:^-|OQ-| 
or  ascertained,  the  coui't  may  direct  such  damages  to  be  "- 
assessed  by  a  jury,  and  the  amount  so  assessed  shall  be  provable 
as  a  debt  due  at  the  time  of  the  bankruptcy.     But  if  all  parties 
agree,  the  court  itself  may  assess  the  damages.((?)     If  the  bank- 
rupt shall  be  liable  by  reason  of  any  contract  or  promise  to  pay 
premiums  upon  any  policy  of  insurance,  or  any  other  sums  of 

(«)  Stat.  12  &  13  Vict.  c.  lOfi,  s.  178.  See  Parker  v.  Ince,  4  H.  &  N.  53;  Ex  parte 
Barwi.s,  6  De  Gex,  M.  &  G.  762 ;  Boyd  v.  Robins,  5  C.  B.  N.  S.  597,  E.  C.  L.  R.  vol.  94  ; 
White  V.  Corbett,  1  E.  &  E.  692,  E.  C.  L.  R.  vol.  102. 

{X)  12  &  13  Vict.  c.  106,  s.  180.  (a)  Sect.  150. 

(y)   Sect.  181.  (A)   Sect.  151. 

(2)  Stat.  24  &  25  Vict.  c.  134,  s.  149.  (c)   Stat.  24  &  25  Vict.  c.  134,  s.  153. 


232  OF    CHOSES   IN   ACTION. 

money,  whether  yearly  or  otherwise,  or  to  repay  to  or  indemnify 
any  person  against  snch  payments,  the  person  entitled  to  the 
benefit  of  such  contract  or  promise  may,  if  he  think  fit,  apply  to 
the  court  to  set  a  value  upon  his  interest  under  such  contract  or 
promise,  and  the  court  must  then  ascertain  the  value  thereof, 
and  admit  such  person  to  prove  the  amount  so  ascertained,  and 
to  receive  dividends  thereon. (c/)  But  the  court  may  at  any  time 
expunge  or  reduce  a  proof  of  debt,  on  such  application  and  such 
evidence  as  it  shall  think  sufiicient.(t')  If  any  creditor  should 
hold  security  upon  any  part  of  the  property  of  the  bankrupt  by 
way  of  mortgage  or  lien,  such  creditor  will  not  be  allowed  to 
prove  for  the  amount  of  his  debt  without  giving  up  his  security 
for  the  benefit  of  the  other  creditors. (/)  But  if  he  be  the  sole 
incumbrancer  on  the  property,(^)  he  may  obtain  an  order  for  its 
sale ;  and  in  case  the  money  arising  from  the  sale  should  be  in- 
sufficient to  pay  him  his  due,  he  will  be  admitted  a  creditor 
under  the  bankruptcy  for  the  deficiency,  and  receive  dividends 
ratably  with  the  rest  of  the  creditors,  but  so  as  not  to  disturb 
any  dividends  already  made.(/i)  Any  mortgagee  with  the  leave 
r*iztm  ^^  ^^^  court  first  *obtained  may  now  bid  at  any  sale  of 
'-         -'    the  mortgaged  property. (/) 

At  the  first  meeting  of  creditors  or  any  adjournment  thereof, 
the  majority  in  value  of  the  creditors  who  have  proved  debts 
may  cboose  an  assignee  or  assignees  of  the  bankrupt's  estates,  to 
be  called  the  creditors'  assignee,  subject  to  the  power  of  the  court 
to  reject  any  person  chosen  who  shall  appear  to  such  court  to  be 
unfit. (A')  Upon  their  appointment,  all  the  estate  both  real  and 
personal  of  the  bankrupt  is,  as  has  been  before  mentioned, (^)  de- 
vested out  of  the  official  assignee  and  vested  in  them  ;(w)  and  as 
often  as  any  assignee  dies  or  is  lawfully  removed,  and  a  new 
assignee  is  duly  appointed,  all  such  real  and  personal  estate  as 
was  then  vested  in  the  deceased  or  removed  assignee  vests  by 
virtue  of  such  appointment  in  the  new  assignee,  either  alone  or 

(d)  Sect.  154.  (/)  Ex  parte  Downes,  IS  Ves.  290. 

(e)  Sect.  156. 

(ff)  Ex  parte  Jackson,  5  Ves.  357;  Ex  parte  Topham,  1  Madd.  .38. 

(A)  Rules  55-57  of  Orders  of  19th  Oct.,  1852,  superseding  Lord  Loughborough's  Order 
of  8th  March,  1794. 

(i)   Stat.  24  &  25  Vict.  c.  134,  s.  132.  (/)  A/ite,  p.  135. 

(X:)   Sect.  116.  (m)  Stat.  24  &  25  Vict.  c.  134,  s.  117. 


OF   BANKRUPTCY   OF   TRADERS.  233 

jointly  with  the  existing  assignees,  as  the  case  may  require.(7?) 
Formerly  a  deed  of  bargain  and  sale  was  executed  by  the  major 
part  of  the  commissioners  acting  in  the  bankruptcy  to  the  as- 
signees, whereby  all  the  real  and  personal  estate  of  the  bankrupt, 
except  copyholds,  was  conveyed  and  assigned  to  the  assignees. (o) 
But  at  length,  in  the  year  1831,  when  the  Court  of  Bankruptcy 
was  established  in  London,  it  was  discovered  that  the  mere  ap- 
pointment of  the  assignees  might  operate  as  effectually  as  a  deed 
of  conveyance  to  vest  the  bankrupt's  estate  in  them. 

As  the  bankruptcy  of  a  person  consists  in  his  committing  an 
act  of  bankruptcy,  and  not  in  his  being  adjudged  bankrupt,  his 
assignees,  when  appointed,  become  *entitled  to  all  the  r*24i-| 
real  and  personal  estate  of  which  he  was  possessed  at  the 
hour  when  he  committed  the  act,(^)  though  the  legal  estate  in 
the  bankrupt's  lands  remains  vested  in  him  until  conveyed  to  the 
assignees  by  their  appointment.(^)  The  title  of  the  assignees,  it 
is  said,  relates  back  to  the  act  of  bankruptcy.  The  consequences 
of  this  rule  were  formerly  very  serious,  as  many  bona  fide  trans- 
actions were  overturned  in  consequence  of  an  act  of  bankruptcy 
having  been  committed  by  one  of  the  parties  without  the  knowl- 
edge of  the  other.  But  after  several  partial  remedies,(r)  it  is  now 
enacted  that  all  payments  really  and  bona  fide  made  by  any  bank- 
rupt, or  by  any  person  on  his  behalf,  before  the  tiling  of  a  petition 
for  adjudication  of  bankruptcy,  and  all  payments  really  and  bona 
fide  made  to  any  bankrupt  before  the  filing  of  such  petition,  and 
all  conveyances  by  any  bankrupt  bona  fide  made  and  executed  be- 
fore the  filing  of  such  petition,  and  all  contracts,  dealings,  and 
transactions(.S')  by  and  with  any  bankrupt  really  and  bona  fide 
made  and  entered  into  before  the  filing  of  such  petition,  and  all 
executions  and  attachments  against  the  lands  and  tenements  of 
any  bankrupt  bona  fide  executed  by  seizure,  and  all  executions 

(n)   Stat.  12  &Vi  Vict.  c.  106,  ss.  141,  142. 

(o)    Stat.  6  Geo.  IV,  c.  16,  ss.  6.3,  64. 

(/;)  Thomas  v.  Desanges,  2  Bar.  &  Aid.  586  ;  llouch  v.  Great  Western  Railway  Company, 
1  Q.  B.  61,  E.  C.  L.  R   vol.  41. 

(q)   Doe  d.  Esdaile  v.  Mitchell,  2  Man.  &  Selw.  446. 

(r)  Stats.  46  Geo.  Ill,  c.  l.'iS,  s.  1  ;  49  Geo.  III,.c.  121,  s.  2  ;  ,06  Geo.  Ill,  c.  i:!7,  ?.  1  ; 
6  Geo.  IV,  c.  16,  ss.  81,  82,  84  ;  2  &  'A  Vict.  c.  11,  s.  12  ;  2  &  3  Vict.  c.  29. 

(*•)  See  Graham  v.  Furber,  14  C.  B  l-'U,  E.  C.  L.  R.  vol.  78;  S.  C.  18  Jur.  61  ;  Brewin 
V.  Short,  Q.  li.,  1  Jur.  N.  S.  798  ;   5  E.  A  B.  227,  E.  0.  L.  R.  vol.  85. 


234  OF   CHOSES    IN    ACTION. 

and  attachments  against  the  goods  and  chattels  of  any  bankrupt 
bona  fide  executed  and  levied  In;  seizure  and  sale  before  the  tiling 
of  such  petition,  shall  be  deemed  to  be  valid,  notwithstanding 
any  prior  act  of  bankrui)tc3'  by  such  bankrupt  committed;  pro- 
vided the  person  so  dealing  with  or  paying  to  or  being  paid  b}^ 
such  bankru|)t,  or  at  whose  suit  or  on  whose  account  such  execu- 
r.^.r^-,  tion  or  attachment  shall  have  *issued,  had  not  at  the 
^  -■  time  of  such  payment,  conveyance,  contract,  dealing,  or 
transaction,  or  at  the  time  of  executing  or  levying  such  execution 
or  attachment,  or  at  the  time  of  making  any  sale  thereunder, 
notice  of  any  prior  act  of  bankruptcy  by  him  committed. (/)  The 
eifect  of  this  enactment  is  to  substitute  the  filing  of  the  petition 
for  adjudication  for  the  act  of  bankruptcy,  so  far  as  respects  all 
persons  dealing  and  acting  bona  Jide  and  without  notice  of  the  act 
of  bankruptcy.  But  it  is  provided  that  this  enactment  shall  not 
give  validity  to  any  payment,  or  to  any  delivery  or  transfer  of  any 
goods  or  chattels  made  by  any  bankrupt,  being  a  fraudulent  pref- 
erence of  any  creditor  of  such  bankrupt,  or  to  any  conveyance  or 
equitable  mortgage  made  or  given  by  any  bankrupt  by  way  of 
fraudulent  preference  of  any  creditor,  or  to  any  execution  founded 
on  a  judgment  on  a  warrant  of  attorney,  or  cognovit  actionem,  or 
judge's  order  obtained  by  consent  given  by  any  bankrupt  by  way 
of  fraudulent  preference. (//)  A  purchase,  how^ever,  from  any 
bankrupt,  bona  fide  and  for  valuable  consideration,  even  if  made 
with  notice  of  an  act  of  bankruptcy,  shall  not  be  impeached  by 
reason  thereof,  unless  a  petition  for  adjudication  shall  have  been 
filed  within  twelve  calendar  months  after  such  act  of  bank- 
ruptcy. (:>:) 

The  estate  and  eifects  of  the  bankrupt,  being  thus  vested  in 
his  assignees,  are  sold,  got  in,  and  converted  into  money  by  them 
for  the  benefit  of  the  creditors.  But  it  is  now  provided  that,  if 
it  shall  appear  at  any  meeting  of  the  creditors  summoned  by  the 
assignees  by  notice,  stating  the  object  of  the  meeting,  and  at 
which  three-fourths  in  value  of  the  creditors  shall  be  present  or 
represented,  that  the  debts  of  any  bankrupt  can  be  discharged 

(0   Stat.  12  i  13  Vict.  c.  106,  s.  133.  (x)  Sect.  134. 

(/()   Sect.  133. 


OF   BANKRUPTCY   OF    TRADERS.  235 

by  means  of  money  raised  by  way  of  *mortgage  or  pledge  r^-,^o-| 
of  any  of  bis  property,  and  sucb  meeting  sball  pass  a  res- 
obition  accordingly,  tbe  assignees  may,  wben  tbereunto  autbor- 
ized  by  order  of  tbe  court,  execute  sucb  mortgage  or  pledge  witb 
or  witbout  powers  of  sale,  and  otber  powers,  and  in  sucb  manner 
in  all  respects  as  sball  be  specified  in  sucb  order.(^)  And  it  is 
furtber  provided  tbat,  at  any  time  after  tbe  expiration  of  twelve 
montbs  from  adjudication,  or  at  any  earlier  period  witb  tbe  ap- 
probation of  tbe  court,  tbe  assignees  may  sell  by  auction  or 
tender,  or  witb  tbe  sanction  of  tbe  court  by  private  contract,  all 
or  any  of  tbe  book-debts  due  or  growing  due  to  tbe  bankrupt, 
and  tbe  books  relating  tbereto,  and  tbe  goodwill  of  bis  trade  or 
business,  and  assign  tbe  same  to  tbe  purcbaser;  and  sucb  pur- 
cbaser  sball  by  virtue  of  tbe  assignment  bave  power  to  sue  in  bis 
own  name  for  tbe  debts  assigned  to  bim  as  effectually,  and  witb 
tbe  same  privileges  concerning  proof  of  tbe  requisites  of  bank- 
ruptcy and  otber  matters  as  tbe  assignee  bimself.(2) 

At  tbe  expiration  of  four  montbs  from  tbe  date  of  tbe  adjudi- 
cation of  bankruptcy,  or  as  mucb  earlier  as  tbe  court  sball  ap- 
point, a  meeting  of  tbe  creditors  is  beld  before  tbe  registrar,  at 
wbicb  tbe  creditors'  assio;'nee  submits  a  statement  as  to  tbe  bank- 
rupt's  property,  whicb  statement  it  is  tbe  duty  of  tbe  official 
assignee  to  examine,  and  a  dividend  is  tben  resolved  on;  and  at 
tbe  same  time,  tbe  majority  in  value  of  tbe  creditors  present 
determine  wbetber  any  and  wbat  allowance  sball  be  made  to  tbe 
bankrupt  out  of  bis  estate,  if  be  bas  obtained  or  sball  obtain  bis 
discbarge. (a)  In  tbe  payment  of  dividends  no  preference  is 
given  on  account  of  tbe  nature  of  tbe  debt,  wbetber  judgment 
*debt,  bond  debt,  specialty,  or- simple  cpntract.  In  this  r^-,^_,-| 
respect  tbe  Court  of  Cbaucery,  to  wbicb  tbe  jurisdiction  '- 
in  bankruptcy  anciently  belonged,  and  wbicb  now  exercises  an 
appellate  jurisdiction, (6)  followed  its  rule  tbat  equality  is  equity. 
And  if  any  trader,  in  contemplation  of  bankruptcy,(c)  sbould  vol- 

(y)   Stat.  24  &  25  Vict.  e.  134,  s.  133. 

(2)   Stat.  24  &  25  Vict.  c.  134,  s.  137  ;  Shipley  v.  Marsshall,  14  C.  B.,  N.  S.  506,  E.  C.  L.  R. 
vol.  108. 

(a)  Stat.  24  &  25  Vict.  c.  134,  s.  174. 

(/j)   StatB.  12  &  13  Vict.  c.  106,  s.  12  ;  24  <t  25  Vict.  c.  134,  s.  66. 
e)  Wheelwright  v.  Jackson,  5  Taunt.  109,  E.  C.  L.  R.  vol.  1. 


236  OF    ClIOSES    IN    ACTION. 

mitarily,  and  without  prcssnre,(r/)  pay  or  secure  any  one  of  his 
creditors,  with  a  view  of  giving  him  a  preference  over  the  others, 
sucli  payment  or  security  will  be  void  as  against  the  assignees.(e) 
The  crown,  however,  may  enforce  payment  of  the  entire  debt  of 
a  bankrupt  crown  debtor,  notwithstanding  the  bankrupt  law8.(/) 
And  a  judgment  debt,  if  entered  up  one  year  at  least  before  the 
bankruptcy,  is,  by  the  statute  for  extending  the  remedies  of  cred- 
itors, a  charge  in  equity  on  all  the  bankrupt's  real  estate. (^) 
The  landlord  of  a  bankrupt  may  also,  notwithstanding  an  act  of 
bankruptcy,  distrain  for  his  rent,  not  exceeding  one  year's  rent 
accrued  prior  to  the  day  of  the  filing  of  the  petition  for  adjudi- 
cation.(A)  The  wages  or  salary  of  a  clerk  or  servant  of  the  bank- 
rupt, for  any  time  not  exceeding  three  calendar  months,  and  not 
exceeding  30^.,(?')  and  also  the  wages  of  any  laborer  or  workman, 
not  exceeding  40.?.,  may  be  ordered  by  the  court  to  be  paid  in 
full.(Z:)  In  case  the  proceeds  of  the  bankrupt's  estate  should  be 
more  than  suflicient  to  pay  205.  in  the  pound,  interest  at  four  per 
cent.,  or  at  such  other  rate  as  may  have  been  reserved  or  may 
be  payable  by  law,  is  given  to  the  creditors  from  the  date  of  the 
petition;  and  the  surplus,  after  this,  is^  paid  over  to  the  bank- 
rupt. (^) 

^ , . .  ..^       *In  case  at  the  first,  or  any  other  meeting  of  creditors, 

r  1451  'JO  J 

■-  -'  any  proposal  shall  be  made  by  or  in  behalf  of  the  bank- 
rupt which  the  major  part  in  value  of  the  creditors  then  present 
think  fit  to  accept,  or  if  such  majority  shall  on  any  ground  resolve 
that  no  further  proceedings  be  taken  in  bankruptcy,  the  meeting 
shall  be  adjourned  fourteen  days,  in  order  that  notice  of  such 
resolution  may  be  given  to  every  creditor ;  and  if  at  such  adjourned 
meeting  a  majority  in  number  representing  three-fourths  in  value 
of  the  creditors  present,  shall  so  resolve,  the  proceedings  in  bank- 
ruptcy shall  be  suspended,  and  the  bankrupt's  estate  shall  be 
wound  up  and  administered  in  such  manner  as  such  majority  shall 
direct ;  and  the  bankrupt  having  made  a  full  discovery  of  his 

{d)   Crosby  i-.  Crouch,  11  East.  256. 
(p)   Rust  V.  Cooper,  Cowp.  629. 
(/)   Anon.,  1  Atk.  262. 

(g)   Stat.  1  &  2  Vict.  c.  110,    s.  1.3  :   Ex  parte  Boyle,   3  De  Ge.x,   M.  &  G.  515  :   S.  C.   17 
Jur.  979. 

(A)   Stat.  12  &  13  Vict.  c.  106,  s.  129.  {k)   Sect.  169. 

(I)   Sect.  168.  .  (/)   Sect.  197. 


OF   BANKRUPTCY   OF    TRADERS.  237 

estate  shall  be  entitled  to  apply  for  an  order  of  discharge. (?>?)  And 
at  the  first  meeting  or  at  any  other  meeting  of  creditors  to  be  called 
for  the  purpose,  and  of  which  ten  days'  notice  shall  have  been 
given  in  the  London  Gazette,  three-fourths  in  number  and  value 
of  the  creditors  present  or  represented  at  such  meeting  may  resolve 
that  the  estate  ought  to  be  wound  up  under  a  deed  of  arrange- 
ment, composition,  or  otherwise.(7?)  And  if  the  court,  on  due 
hearing,  shall  find  that  such  resolution  was  duly  carried,  and  that 
its  terms  are  reasonable  and  calculated  to  benefit  the  general  body 
of  the  creditors  under  the  estate,  it  shall  confirm  the  same  and 
make  order  accordingly,  and  in  such  order  shall  give  such  direc- 
tions as  to  the  interim  management  of  the  estate  as  it  shall  deem 
expedient.(o)  A  deed  of  arrangement  may  then  be  signed  by  or 
on  behalf  of  three-fourths  in  number  and  value  of  all  the  creditors 
of  the  bankrupt ;  and  if  the  court  shall  be  satisfied  that  the  deed 
has  been  duly  entered  into  and  executed,  and  that  its  terms  are 
reasonable  and  calculated  to  benefit  *the  general  body  of  r*-i^^-| 
the  creditors,  it  may,  by  order,  make  a  declaration  of  the 
complete  execution  of  the  deed,  and  may  direct  the  same  to  be 
registered  with  the  chief  registrar,  and  may  also,  if  it  thinks  fit, 
annul  the  bankruptcy;  and  such  deed  shall  thereafter  be  as  bind- 
ing in  all  respects  on  any  creditor  who  has  not  executed  the  deed, 
as  if  he  had  executed  it;  provided  such  deed  be  registered  with 
the  chief  registrar  in  the  manner  directed  by  the  order.(2^) 

If  the  bankrupt  had  duly  surrendered  and  conformed  to  the 
bankrupt  law,  he  was  formerly  entitled  to  a  certificate  of  con- 
formity, by  which  he  was  discharged  from  all  debts  due  by  him 
when  he  became  bankrupt,  and  from  all  claims  and  demands  made 
provable  under  the  bankruptcy. (g')  Formerly  the  certificate  was 
required  to  be  signed  by  a  given  proportion  of  the  creditors  ;{r) 
but,  by  the  Act  of  1849,  the  court  was  constituted  the  sole  judge 
of  any  objections  which  might  be  made  by  any  creditors  against 
allowing  the  certificate  ;  and  the  court  might  either  allow  the  same 
or  refuse  or  suspend  the  allowance  thereof,  or  annex  such  con- 
ditions thereto  as  the  justice  of  the  case  might  require.(6')     Tlie 

(m)  Stat.  24  &  25  Vict.  c.  134,  s.  110.  {>/)  Stat.  12  &  13  Vict.  c.  106,  ss.  199,  200. 

(n)  Sect.  185.  •             (')  Stat.  6  Geo.  IV,  c.  16,  s.  122. 

(o)   Sect.  186.  (•')  Stat.  12  &  13  Vict.  c.  106,  8.  198. 
(p)  Stat.  24  &  25  Vict.  c.  134,  3.  187. 


238  OF   CHOSES   IN    ACTION. 

certificates  were  by  this  act  divided  into  three  classes.  If  the 
bankrui)tcy  had  arisen  from  unavoidable  losses  and  misfortunes, 
the  bankrupt  was  entitled  to  a  certiiicate  of  the  first  class.  If  the 
bankru[>tcv  had  not  u-holhi  arisen  from  unavoidable  losses  and 
misfortunes,  he  was  entitled  to  a  certificate  of  the  second  class. 
And  if  the  bankruptcy  had  not  arisen  from  unavoidable  losses  or 
misfortunes,  he  was  only  entitled  to  a  certificate  of  the  third 
class.(/)  But  all  classification  of  certificates  is  now  abolished ;(i^) 
and  *the  bankrupt,  if  he  has  properly  conducted  himself, 
L  Ms  entitled  to  an  order  of  discharge,  which  will  discharge 
him  from  all  debts,  claims,  or  demands,  provable  under  his  bank- 
ruptcy.(x)  All  contracts  or  securities  to  induce  any  creditor  to 
forbear  opposition  to  the  order  of  discharge,  or  to  forbear  to  pe- 
tition for  a  rehearing  of  or  to  appeal  against  the  same,  are  void; 
but  no  such  security,  if  a  negotiable  security,  shall  be  void  as 
against  a  bona  Jide  holder  thereof  for  value  without  notice  of  the 
consideration  for  which  it  M'^as  given. (?/) 

Until  the  bankrupt  obtains  his  discharge  all  the  real  and  per- 
sonal property  which  may  descend,  revert,  or  be  devised  or  be- 
queathed or  come  to  him,  becomes  vested  in  his  assignees. (2) 
But  an  -uncertificated  bankrupt  might  maintain  an  action  for  his 
personal  labor  performed  after  the  bankruptcy,(a)  and  he  might 
also  sue  in  respect  of  contracts  made  with  himself,  and  also  in  re- 
spect of  any  after-acquired  property,  if  the  assignees  or  creditors 
did  not  interfere.(6)  The  court,  however,  is  now  empowered  in 
certain  cases  of  misconduct,  either  to  refuse  or  suspend  the  order 
of  discharge,  or  to  grant  the  same  subject  to  any  conditions  touch- 
ing any  salary,  pay,  emoluments,  profits,  wages,  earnings,  or 
income,  which  may  afterwards  become  due  to  the  bankrupt,  and 
touching  his  after-acquired  property. (c) 

All  the  proceedings  in  bankruptcy  are  entered  of  record  in  the 
Court  of  Bankruptcy  ;(cZ)  and  every  proceeding  or  order  in  bank- 

(0   Stat.  12  &  13  Vict.  c.  106,  sched.  Z.  {y)   Sect.  166. 

{a)  Stat.  24  &  25  Vict.  c.  134,  s.  157.  (2)   Stat.  12  &  13  Vict.  c.  106,  ss.  141,  142. 

(.r)   Stat.  24  k  25  Vict.  c.  1.34.  s.  161.  {a)   Silk  v.  Osborn,  1  Esp.  R.  140. 

{!,)   Webb  V.  Fox,  7  T.  Rep.  391 ;  Drayton  v.  Dale,  2  Barn.  &  Cress.  293,  E.  C.  L.  R.  vol. 
9  ,  Cioftnn  V.  Poole,  1  Barn.  &  Add.  568,  E.  C.  L.  R.  vol.  20. 
(r)    Stat.  24  &  25  Vict.  c.  134,  s.  159. 
(,'!)   Stat.  12  &  13  Vict.  c.  106,  s.  6. 


OF   BANKRUPTCY   OF   NON-TRADERS.  239 

ruptcy  appearing  to  be  sealed  *with  tlie  seal  of  any  court  r^-^^n-, 
having  jurisdiction  in  bankruptcy,  or  any  writing  pur- 
porting to  be  a  copy  of  any  such  document,  and  purporting  to  be 
so  sealed,  is  at  all  times,  and  on  behalf  of  all  persons,  to  be  admit- 
ted into  all  courts  whatever  as  evidence  of  such  documents  respec- 
tively, and  of  such  proceedings  and  orders  having  respectively 
taken  place  or  been  made,  and  to  be  deemed  respectively  records 
of  such  court,  without  any  further  proof  thereof.(e)  And  all  courts, 
judges,  justices,  and  other  officers,  are  bound  to  take  judicial  no- 
tice of  the  signature  of  any  commissioner  or  registrar  of  the  courts 
and  of  the  seal  of  the  courts,  subscribed  or  attached  to  any  judi- 
cial or  official  proceeding  or  document,  to  be  made  or  signed 
under  the  provisions  of  the  bankrupt  act.(/) 


*CHAPTER   V.  [*149] 

OF    BANKRUPTCY    OF    NON-TRADERS. 

Before  the  Bankruptcy  Act,  1861,  a  person  not  in  trade  could 
not  be  made  a  bankrupt.  He  might,  however,  have  become  insol- 
vent. Insolvency,  strictly  speaking,  means  a  general  inability  to 
meet  pecuniary  engagements. (a)  But  the  term  was  very  com- 
monly and  conveniently  applied  to  the  means  of  getting  rid  of 
such  engagements  afforded  by  certain  acts  of  Parliament  passed 
for  the  relief  of  insolvent  debtors.^ 


(«)  Stat.  24  &  25  Vict.  c.  134,  s.  203.  (/)  Sect.  204. 

(a)  Biddlecombe  v.  Bond,  4  Adol.  &  Ell.  332,  E.  C.  L.  R.  vol.  31. 

1  The  laws  and  regulation.?  on  the  subject  culiar  system  and  practice  of  each  State,  are 
of  insolvency.are  almost  as  diverse  as  thereare  doubtless  of  interest  to  the  citizens  of  the  re- 
States  in  the  Union.  To  give  a  sketch  of  all  spective  States  ;  but  it  can  scarcely  be  ex- 
these  laws,  and  the  judicial  constructions  of  pected,  and  it  certainly  would  not  be  advan- 
them,  would  far  e.xceed  the  limits  of  a  note,  tageous,  to  collect  together  these  diversities, 
The  decisions  as  to  what  is  a  valid  prefer-  numerous  as  they  are,  and  depending  as  they 
ence  made  by  a  debtor  in  favor  of  a  creditor,  do  almost  entirely  upon  an  interpretation  of 
and  what  an  invalid  one, — as  to  what  is  a  the  statutes  of  the  several  States  for  such  a 
good  assignment  for  the  benefit  of  creditors,  collection  could  result  in  nothing  but  con- 
and  what  bad, — together  with  the  many  other  fusion.  The  in.soIvent  law  of  each  State,  is 
questions  of  a  like  nature,  relating  to  the  pe-  regulated  by  the  acts  of  the  legislature  and 


240 


OF    CHOSES    IN    ACTION, 


The  principal  act  for  the  relief  of  insolvent  debtors  in  England 
was  the  statute  1  &  2  Vict.  c.  110,  the  former  sections  of  which 


judicial  opinions  of  Ihat  State,  and  will  be 
conclusive  upon  all  its  citizens,  unless  there 
be  a  conflict  between  the  laws  of  a  State 
and  those  of  the  Genera!  Government;  Gris- 
wold  V.  Piatt,  9  Metcf.  R.  16;  Betts  «.  Bag- 
ley,  12  Pick.  R.  580  ;  Alexander  v.  Gibson, 
1  N.  &  McC.  R.  483  ;  Clark,  Assignee.  Ac,  v. 
Rosenda  et  al.,  5  Robins.  R.  27.  It  is  only, 
therefore,  those  questions  which  are  of  general 
interest,  that  will  be  here  considered. 

By  the  term  '-insolvent  law,*'  as  generally 
received,  is  understood  a  law  operating  upon 
the  remedy  of  a  contract,  and  not  upon  the 
contract  itself;  discharging,  indeed,  the 
debtor  from  imprisonment,  but  not  releasing 
his  future  acquisitions  of  property  from  the 
paj'ment  of  his  debt ;  while  under  the  words 
"bankrupt  law,"  is  comprehended  all  those 
enactments,  which  discharge  the  debtor  from 
liabilitj'  upon  his  contract.  That  this  dis- 
tinction between  bankrupt  and  insolvent  laws, 
though  ordinarily  received  as  true,  cannot  be 
entirely  relied  on,  may  be  seen  from  the 
opinion  of  Chief  Justice  Marshall,  in  the  case 
of  Sturges  v.  Crowninshield,  4  Wheat.  R. 
194  :  "  It  is  said  .  .  .  that  laws  which  merely 
liberate  the  person  are  insolvent  laws,  and 
those  which  discharge  the. contract,  are  bank- 
rupt laws.  But  if  an  act  of  Congress  should 
discharge  the  person  of  a  bankrupt,  and 
leave  his  future  acquisitions  liable  to  his 
creditors,  we  should  feel  much  hesitation  in 
saying  that  this  was  an  insolvent,  not  a  bank- 
rupt act ;  and,  therefore,  unconstitutional. 
Another  distinction  has  been  stated,  and  has 
been  uniformly  observed.  Insolvent  laws 
operate  at  the  instance  of  an  imprisoned 
debtor  ;  bankrupt  laws  at  the  instance  of  a 
creditor.  But  should  an  act  of  Congress 
authorize  a  commission  of  bankruptcy  to 
issue  on  the  application  of  a  debtor,  a  court 
would  scarcely  be  warranted  in  saying  that 
the  law  was  unconstitutional,  and  the  com- 
mission a  nullity."  Notwithstanding  this 
decision,  the  district  judge  of  Missouri,  in 
Nelson  v.  Garland,  pronounced  the  act  of 
Congress  of  1841,  authorizing  a  debtor  to  be 
declared  a  bankrupt  upon  his  own  petition,  a 
mere  insolvent  law;  but,  upon  a  certificate  of 
difference  of  opinion  between  the  judges  of 


the  Circuit  and  District  Courts,  the  Supreme 
Court  declared,  that,  unc'er  the  circumstances 
of  that  case,  the  act  did  not  give  a  power  of 
review,  and  that  the  decision  of  the  district 
judge  must  be  regarded  as  final  ;  1  How.  R. 
269.  This  diflSculty  of  distingui.^hing  be- 
tween bankrupt  and  insolvent  laws,  has,  per- 
haps, in  part,  caused  that  diversity  of  opinion 
which  has  led  to  the  holding,  in  some  cases, 
that  the  States  not  only  have  power  to  pass 
insolvent  laws,  but  also  bankrupt  laws;  Og- 
den  V.  Saunders,  12  AVheat.  R.  213  ;  WoodhuU 
et  al.  V.  Wagner,  1  Baldw.  R.  296  ;  Shaw  v. 
Robins,  12  Wheat.  R.  369  ;  Mason  v.  Haile, 
Id.  370  ;  Beers  et  al.  v.  Haughton,  9  Pet.  R. 
330  ;  Hempstead  v.  Reed,  6  Conn.  R.  480  ; 
Norton  v.  Cook,  9  Id.  314;  Blair,  &c.,  v. 
Williams,  4  Litt.  R.  35  ;  Bronson  v.  New- 
berry, 2  Doug.  R.  38  ;  Brown  v.  Dillahunty 
et  al.,  4  Smed.  &  Mar.  R.  725  ;  Gray  et  al. 
V.  Monroe  et  al.,  1  McLean's  R.  528  ;  Roose- 
velt V.  Cebra,  17  Johns.  R.  108;  Post  v. 
Riley,  18  Id.  54  ;  Penniman  v.  Meigs,  9  Id. 
325  ;  Ex  parte  Ziegenfuss,  2  Ired.  L.  R.  467  ; 
Smith  V.  Parsons,  1  0.  R.  236  ;  Alexander  v. 
Gibson,  1  Nott.  &  McC.  R.  483;  while,  on 
the  contrary,  other  authorities  maintain  that 
the  State  legislatures  have  no  power  to  pass 
bankrupt  laws ;  McMillan  v.  McNeill,  4 
Wheat.  R.  209  ;  Golden  v.  Price,  3  Wash.  C. 
C.  R.  313  ;  Farmers'  and  Mechanics'  Bank  of 
Pennsylvania  v.  Smith,  6  Wheat.  R.  131  ; 
Glenn  v.  Humphreys,  4  Wash.  C.  C.  R.  424; 
Medbury  v.  Hopkins,  3  Conn.  R.  472  ;  Bal- 
lentine  et  al.  v.  Haight,  1  Ilarring.  R.  197; 
Olden  et  al.,  Exrs.,  v.  Hallet,  2  South.  R. 
466.  All  the  cases,  however,  agree,  that  the 
State  governments  have  no  power  to  make  a 
law  impairing  the  obligation  of  a  contract, 
and  the  only  question  of  dispute  between 
them  has  been,  whether  a  State  bankrupt  law 
impairs  the  obligation  of  a  contract ;  some 
holding  that  it  does,  because  we  understand 
by  a  bankrupt  law  one  which  absolutely  dis- 
charges the  debt ;  and  others,  admitting  the 
definition  of  a  bankrupt  law,  deny  that  it 
impairs  the  contract,  if  the  bankrupt  law 
was  in  existence  at  the  time  when  the  con- 
tract was  made,  because  the  contract  was  then 
made  in  subserviency  to  existing  laws.     As 


OF    BANKRUPTCY   OF   NON-TRADERS. 


241 


are,  however,  occupied  in  abolishing  arrest  on  mesne  process  in 
civil  actions,  and  in  extending  the  remedies  of  judgment  creditors 


to  insolvent  laws,  it  has  been  determined  that  is  inconsistent  with  the  partial  acts  of  the 
inasmuch  as  they,  according  to  the  ordinary  States."  See  also  Baldwin  v.  Hale,  1  Wal- 
acceptation  of  the  term,  operate  merely  upon    lace's  U.  S.  R.  22S. 

the  remedy,  and  not  upon  the  contract  itself,  It  being  settled,  then,  that  the  States  have 
thev  cannot  be  said  to  impair  the  obligation  power  to  make  insolvent  laws,  another  very 
of  contracts,  and  are  consequently  valid,  interesting  question  arises,  as  to  the  extent 
The  effect  of  a  discharge  under  the  insolvent  of  the  jurisdiction  of  those  laws  ;  and  this  has 
law  of  a  State,  may  be  regarded  as  at  rest,  so  occasioned  considerable  diversity  of  senti- 
far  as  regards  the  decisions  of  the  courts  of  ment.  Although,  for  general  purposes,  the 
the  United  States;  Boyle  v.  Zacharie  et  al.,  people  of  this  country  are  one,  yet,  in  all 
C  Pet.  R.  6.35.  That  other  question,  also,  in  other  respects,  the  States  are  necessarily  for- 
respect  to  the  clashing  of  the  authority  of  the  eign  and  independent  of  each  other  ;  Buckner 
State  and  General  Government,  may  be  con-  v.  Finley  et  al.,  2  Pet.  R.  586;  Emory  v. 
sidered  determined,  for  in  the  words  of  Chief  Greenough,  .3  Dal.  R  369  ;  and  consequently 
Justice  Marshall,  in  the  case  of  Sturges  v.  it  is  to  be  expected,  that  as  in  the  interpreta- 
Crowninshield,  above  referred  to:  "This  dif-  tion  of  foreign  contracts,  the  lex  loci  contrac- 
ficulty  of  discriminating  with  any  accuracy  Uis  will  be  regarded  ;  Smith  v.  Mead,  3  Conn, 
between  insolvent  and  bankrupt  laws,  would  R.  253;  Hammett  v.  Anderson,  Id.  304; 
lead  to  the  opinion  that  a  bankrupt  law  may  while,  in  the  execution  of  the  contract,  the 
contain  those  regulations  which  are  generally  lex  fori  will  prevail ;  White  v.  Canfield,  7 
found  in  insolvent  laws,  and  that  an  insolvent  Johns.  R.  117;  Whittemore  v.  Adams,  2 
law  may  contain  those  which  are  common  to  Cow.  R.  626  ;  Lowden  et  al.  v.  Moses,  3  McC. 
a  bankrupt  law.  If  this  be  correct,  it  is  ob-  R.  93  ;  Ayres  et  al.  v.  Audibon,  2  Hill's  (S. 
vious  that  much  inconvenience  would  result  C.)  R.  601.  In  accordance  with  this,  we  find 
from  that  construction  of  the  Constitution,  that  a  contract  made  in  one  State,  is  not  af- 
which  would  deny  to  the  State  legislature  the  fected  by  the  discharge  of  the  debtor  under 
power  of  acting  on  this  subject,  inconsequence  the  insolvent  law  of  another  State;  Cook  v. 
of  the  grant  to  Congress.  It  may  be  thought  Moffat  et  al.,  5  How.  R.  295  ;  Smith  v.  Mead, 
more  convenient  that  much  of  it  should  be  3  Conn.  R.  253  ;  Hammett  v.  Anderson,  Id. 
regulated  by  State  legislation,  and  Congress  304;  Fisher  et  al.  v.  Wheeler  et  al.,  5  La. 
may  purposely  omit  to  provide  for  many  cases  An.  R.  271  ;  Judd  v.  Porter,  7  Maine  R.  337  ; 
to  which  their  power  extends.  It  does  not  Palmer  v.  Goodwin,  32  Id.  535  ;  Larrabee  v. 
appear  to  be  a  violent  construction  of  the  Talbott,  Ac,  5  Gill's  R.  426  ;  Glenn  v.  Gill, 
Constitution,  and  is  certainly   a  convenient    2  Md.  R.  18  ;  Owens  et  al.  t^.  Bowie  et  al.,  &c., 


one,  to  consider  the  power  of  the  States  as 
existing  over  such  cases,  as  the  law  of  the 
Union  may  not  reach.  But  be  this  as  it  may, 
the  power  granted  to  Congress  may  be  ex- 
ercised or  declined,   as  the  wisdom   of  that 


Id.  457  ;  Van  Raugh  v.  Van  Arsdale,  3  N.  Y. 
T.  R.  154  ;  Van  Hook  v.  Whittock,  26  Wend. 
R.  53;  Hicks  v.  Hotchkiss  et  al.,  7  Johns. 
Ch.  R.  297  ;  Wyman  v.  Mitchell,  1  Cow.  R. 
316  ;   Bizziel  v.   Bedient,    2   Car.   L.    Repos. 


body  shall  decide.  If,  in  the  opinion  of  Con-  254;  McKim  r.  Willis,  1  Allen's  R.  512; 
gress,  uniform  laws  concerning  bankruptcies  Kendall  v.  Badger,  1  McCal.  C.  C.  R.  263  ; 
ought  not  to  be  established,  it  does  not  fol-  Beer  v.  Hooper,  32  Missi.  R.  246  ;  Dinsmore 
low  that  partial  laws  may  not  exist,  or  that  v.  Bradley,  5  Gray's  R.  487  ;  Anderson  v. 
State  legislation  on  the  subject  may  cease.  Wheeler,  25  Conn.  R.  603  ;  and  that  a  dis- 
It  is  not  the  mere  existence  of  the  power,  charge  from  imprisonment  in  one  State,  can- 
but  its  exercise,  which  is  incompatible  with  not  be  of  any  avail  in  an  action  brought  in 
the  exercise  of  the  same  power  by  the  States,  the  courts  of  the  United  States,  or  the  courts 
It  is  not  the  right  to  establish  these  uniform  of  any  other  State  than  that  where  the  dis- 
laws,  but  their  actual  establishment,  which  charge  was  obtained ;   Ogden  v.  Saunders,  12 

16 


242 


OF    CHOSES   IN   ACTION. 


against  the  property  of  tlieir  debtors.     So  far  as  the  act  related 
to  insolvent  debtors,  it  was  for  the  most  part,  a  reprint,  with  some 


Wheat.  R.  213;  Clay  v.  Smith,  3  Pet.  R. 
411  ;  United  States  v.  Wilson,  8  Wheat.  R. 
253  ;  Woodhull  et  al.  v.  Wagner,  1  BaUlw. 
R.  296  ;  Shaw  v.  Robbing,  12  Wheat.  R.  369  ; 
Glenn  v.  Humphreys,  4  Wash.  C.  C.  R.  424  ; 
Babcock  «.  Weston,  1  Gallis.  R.  168;  Hinkley 
V.  Mareau,  3  Mason's  R.  88  ;  Beers  v.  Haugh- 
ton,  9  Pet.  R.  330  ;  Suydam  et  al.  v  Broad- 
nax  et  al.,  Adnirs.,  14  Id.  67  ;  King  v.  Rid- 
dle, 7  Cranch's  R.  168  ;  Woodbridge  v. 
Wright  et  al.,  3  Conn.  R.  523  ;  Norton  v. 
Cook,  9  Id.  314  ;  Watson  v.  Browne,  10  Mass. 
R.  337  ;  Frey  v.  Kirk,  4  Gill  &  Johns.  R. 
509  ;  Friske  v.  Foster,  10  Mete.  R.  597  ;  Ilsley 
V.  Merriam,  7  Id.  242  ;  Clark  v.  Hatch,  Id. 
455  ;  Wool  et  al.  v.  Malin,  5  Halst.  R.  208  ; 
Vanuxem  et  al.  v.  Hazlehursts,  1  South.  R. 
202;  Smith,  Admr.,  v.  Smith,  2  Johns.  R. 
235  ;  White  v.  Canfield,  7  Id.  117  ;  Sicard  v. 
Whale,  11  Id.  194  ;  Mather  et  al.  v.  Bush,  16 
Id.  233  ;  Whittemore  v.  Adams,  2  Cow.  R. 
626  ;  Peck  v.  Hozier  et  al.,  11  Johns.  R.  346  ; 
James  et  al.  v.  Allen,  1  Dal.  R.  206  ;  Ayres 
et  al.  «.  Audibon,  2  Hill's  (S.  C.)  R.  601; 
Baldwin  v.  Hale,  1  Wallace's  U.  S.  R.  223  ; 
in  which  last  case  it  was  decided,  that  a  dis- 
charge obtained  under  the  insolvent  laws  of 
one  State,  is  not  a  bar  to  an  action  on  a  note 
given  in  and  payable  in  the  same  State,  the 
party  to  whom  the  note  was  given  having 
been  and  being  of  a  different  State,  and  not 
having  proved  his  debt  against  the  defend- 
ant's estate  in  insolvency,  nor  in  any  manner 
been  a  party  to  those  proceedings.  And  see 
Poe  V.  Duck.  5  Md.  R.  1  ;  Fessenden  v.  Wil- 
ley,  2  Allen's  (Mass.)  R.  67.  Some  cases, 
however,  have  held,  that  if  the  discharge  has 
been  granted  by  the  State  in  which  the  con- 
tract was  made,  it  will  remain  good  even 
against  a  resident  of  another  State  ;  Blanch- 
ard  V.  Russell,  13  Mass.  R.  1  ;  Proctor  v. 
Moore,  1  Id.  198  ;  Braynard  v.  Marshall,  8 
Pick.  R.  194;  Savoye  et  al.  v.  Marsh  et  al., 
10  Id.  594  ;  Pugh  v.  Bussel,  2  Blackf.  R.  394  ; 
Scribner  v.  Fisher,  2  Gray's  R.  43 ;  Hough- 
ton V.  Maynard,  5  Gray's  R.  552.  As  a  gene- 
ral rule,  the  State  laws  prohibiting  assign- 
ments of  property,  by  a  failing  debtor,  in  an- 
ticipation of  insolvency,  to  preferred  credi- 
tors, will  not  be  regarded  in  another  or  sister 


State,  where  a  creditor  of  the  insolvent  re 
sides,  and  to  whom  such  assignment  has  been 
made  ;  Upton  v.  Hubbard,  28  Conn.  R.  274  ; 
Mead  v.  Dayton,  Id.  33  ;  Hoyt  v.  Shelden,  3 
Bosw.  R.  267. 

But  there  is  a  class  of  cnses,  which  would 
at  first  sight  seem  to  be  inconsistent  with  the 
decisions  above  quoted  ;  thus,  a  discharge 
obtained  in  Maryland,  or  Pennsylvania,  or 
New  York,  has  been  held  good  in  Delaware  ; 
Lewis  V.  Norwood,  4  Ilarring.  R.  460  j  Fish- 
er V.  Stayton,  3  Id.  271  ;  Beeson  v.  Beeson's 
Admrs.,  1  Id.  466;  Bailey  v.  Seal's  Special 
Bail,  Id.  367  ;  so,  also,  a  discharge  obtained 
in  Pennsylvania,  has  been  held  good  in  New 
Jersey  ;  Rowland  etal.  v.  Stevenson,  1  Halst. 
R.  149  ;  and  in  the  same  State,  a  discharge 
obtained  in  New  York,  upon  a  contract  made 
in  Pennsylvania,  has  been  held  good  ;  Hale 
V.  Ross,  Penning.  R.  590  ;  and  a  discharge 
obtained  in  Massachusetts,  has  been  pro- 
nounced valid  in  Pennsylvania  ;  Wheelockv. 
Leonard,  20  Pa.  St.  R.  440  ,  and  a  discharge 
obtained  in  Massachusetts,  upon  a  contract 
made  there,  with  citizens  of  New  York,  has 
been  held  good  in  New  Hampshire ;  Brown 
V.  Collins,  41  N.  H.  R.  405  ;  but  a  debt  con- 
tracted in  Massachusetts,  between  citizens  of 
that  State,  which  was  evidenced  by  note,  and 
indorsed  to  a  citizen  of  New  Hampshire,  can 
be  collected  by  the  holder  by  suit  in  the  State 
of  New  York,  notwithstanding  the  discharge 
of  the  maker  by  the  insolvent  laws  of  Massa- 
chusetts ;  Smith  v.  Gardner,  4  Bosw.  R.  54 ; 
and  see  further  for  analogous  cases  ;  Hemp- 
stead V.  Reed,  6  Conn.  R.  480 ;  Hicks  v. 
Brown,  12  Johns.  R.  142;  Hare,  Exr.,  v. 
Monetrie,  2  Yeat.  R.  435 ;  Donaldson  v. 
Chambers,  2  Dal.  R.  100  ;  Miller  v.  Hall, 
1  Id.  229 ;  Thompson  v.  Young,  Id.  294. 
This  inconsistency,  however,  proceeds  from  a 
comity  between  the  different  States,  by  which 
the  same  regard  is  paid  by  one  State,  to  the 
insolvent  laws  of  a  sister  State,  as  that  State 
would  pay  to  the  insolvent  laws  of  the  former 
State,  as  will  be  seen  by  a  reference  to  Walsh 
V.  Nourse,  5  Bin.  R.  381,  where  Chief  Jus- 
tice Tilghman  says  :  "If  this  matter  is  con- 
sidered on  pri7tciplc,  it  is  not  easy  to  discover 
by  what  authority  any  State,  can  by  its  laws, 


OF    BANKRUPTCY   OF    NON-TRADERS.  243 

important  additions,  of  a  previous  statute  for  the  same  purpose,(6) 
by  which  the  laws  then  existing  on  the  subject  were  amended 
and  consolidated.  The  relief  afforded  to  the  debtor  was  his  dis- 
charge from  prison ;  and  the  act  accordingly  only  applied  to  persons 
in  actual  custody  within  the  walls  of  a  prison  in  England.  Any 
such  person  in  custody  upon  any  process  whatsoever,  for  or  by 
reason  of  any  debt,  damages,  costs,  sum  or  sums  of  monej^,  or  in 
consequence  of  contempt  of  any  *court  whatsoever  for 
non-payment  of  money  or  costs,  taxed  or  untaxed,  might 
at  any  time  within  the  space  of  fourteen  days  next  after  the  com- 
mencement of  his  actual  custody,  or  afterwards  by  permission  of 
the  court,  apply  by  petition  to  the  Court  for  the  Relief  of  Insolv- 
ent Debtors  for  his  discharge  from  such  custody,  according  to  the 
provisions  of  the  act.(c)  In  the  country  the  petitiou  was  referred 
for  hearing  to  the  county  court  of  the  district  within  which  the 
insolvent  was  in  custody.((/)  The  insolvent  himself  w^as  formerly 
the  only  person  who  could  put  the  machinery  of  the  act  in  motion ; 
but  afterwards  the  creditor  at  whose  suit  the  prisoner  w^as  com- 
mitted to  prison  or  charged  in  execution  might,  if  not  satisfied 
within  twenty-one  days  next  after  such  prisoner  should  have  been 
so  committed  or  charged  in  execution,  himself  petition  the  court 
for  his  share  of  the  relief,(e)  which  consisted  in  the  real  and  per- 
sonal estates  and  effects  of  the  prisoner  being  vested  in  the  provi- 
sional assignee  of  the  court  for  the  benefit  of  his  creditors. 

(b)  Stat.  7  Geo.  IV,    c.  57,   continued  and  amended  by  stat.   11  Geo.  IV,  &  1  Will.  IV, 
c.  38. 

(c)  Stat.  1  &  2  Vict.  c.  110,  s.  .35. 
{d)  Stat.  10  &  11  Vict.  c.  102,  s.  10. 

(e)  Sect.  36.     In  this  case,  however,  the  Insolvent  Court  had  no  adequate  means  of  com- 
pelling the  prisoner  to  file  a  schedule  of  his  property  ;  Hollis  v.  Bryant,  12  Sim.  492,  501. 


affect  a    debt  contracted  in   another    State,  regard   to   the   insolvent   laws   of  our   sister 

where  the  creditor  is  re.siding.     I  mean  how  States,  which  their  courts  pay  to  ours.  If  the 

it  can  affect  a  debt  so  as  to  prevent  the  credi-  matter  were  to  be  taken  up  anew,  I  should 

tor  from  bringing  an  action  in  another  State,  be  for  adhering  to  what  I  consider  the  true 

Every  State  has  power  over  the  persons  resid-  principle.     But  not  without  considerable  re- 

ing   within  its  territory,  and  therefore  where  luctance,  I  have  thought  myself  bound  by 

a  debt  is  discharged  by  the  law  of  a  State,  in  former   decisions,  as  I   have  declared  in    the 

which   both   plaintiff  and  defendant    re.side,  case  of  Boggs  and  Davidson  v.  Teacklo,"  &o.  : 

another  State  ought  to  pay  regard  to  it.     He-  and  see  also,  Mount  v.  Bradford,  1  Miles's  R. 

peated  decisions   by  my  predecessors   in  this  17;  Fisher  v.  Hyde,  3  Yeat.  11.  25(1;    Smith 

Court,  have  placed  the  law  on  a  footing  some-  «.  Brown,   3   Bin.   R.    201;   Boggs  et  al.    v 

what  different  from  the  principle  I  have  men-  Teackle,  5  Id.  332  ;   Ililliard  et  al.  v.  Green- 

tioned.     Our  rule  has  been  to  jiay  the  same  leaf.  Id.  330,  and  note. 


244  OF   CIIOSES   IN    ACTION. 

On  the  filing  of  tlie  petition  either  of  the  debtor  or  of  the  cred- 
itor, a  vesting  order,  as  it  was  termed,  was  made  l)y  tlie  conrt. 
By  this  order  all  the  real  and  personal  estate  and  effects  of  the 
prisoner,  both  within  this  realm  and  abroad  (except  his  wearing 
apparel,  bedding,  and  other  such  necessaries  of  himself  and  his 
family,  and  his  working  tools  and  implements,  not  exceeding  in 
the  whole  the  value  of  twenty  pounds),  and  all  the  future  estate 
to  which  he  might  become  entitled  until  his  final  discharge,  were 
vested  in  the  provisional  assignee  for  the  time  being  of  the  estates 
[-^^^^-,  and  etfects  of  insolvent  *debtors  in  England. (/)  The 
•-  -^  court  might  susequently  have  appointed  any  proper  person 
or  persons  to  be  assignees  of  such  estate  and  etiects,  in  whom  the 
same  accordingly  vested  on  the  acceptance  of  the  appointment 
being  signified  by  him  or  them  to  the  court.(//)  The  estate  and 
effects  of  the  prisoner  were  then  sold  and  converted  into  money 
by  the  assignees  in  the  manner  directed  by  the  act. (A)  And  the 
court  had  power  to  order  that  any  property  of  the  prisoner  might 
be  mortgaged,  instead  of  being  sold,  if  it  shonld  appear  to  the 
court  that  his  debts  could  be  discharged  by  such  means,  (z)  If  the 
insolvent  were  a  beneficed  clergyman,  the  assignees  might  have 
obtained  a  sequestration  of  the  profits  of  the  benefice  for  the  pay- 
ment of  his  debts.(A')  And  if  the  insolvent  were  or  had  been  an 
otficer  under  government,  or  in  the  service  of  the  East  India  Com- 
pany, a  portion  of  his  pa}^  half  pay,  salary,  emoluments,  or  pension 
might,  with  the  written  consent  of  the  chief  officer  of  the  depart- 
ment to  which  he  belonged  or  had  belonged,  be  ordered  to  be 
paid  to  the  assignees. (^  The  produce  of  the  insolvent's  estate 
was  then  divided  by  the  assignees  ratably  amongst  the  creditor8,(?)?) 
and  if  any  prisoner  should  before  or  after  his  imprisonment,  being 
in  insolvent  circumstances,  have  voluntarily  conveyed,  charged 
or  made  over  any  of  his  estate  to  or  in  trust  for  any  creditor  or 
creditors,  every  such  transaction  was  declared  to  be  fraudulent 
and  void  as  against  the  assignees,  if  made  within  three  months 


(/■)  Stat.  I  &  2  Vict.  c.  110,  s.  37;  Ford  v.  Dabbs,  5  Man.  &  Gr.  309,  E.  C.  L.  H,  v 

(g)  Stat.  1  &  2  Vict.  c.  110,  s.  45. 

(h)  Sect.  47.     See  Wright  v.  Maunder,  4  Beav.  512. 

(i)  Sect.  48. 

{k)   Sect.  55.    See  Stat.  12  &  13  Vict.  c.  G7. 

(/)   Stat.  1  &  2  Vict.  c.  110,  s.  oG. 

(m)  Sect.  62. 


ol.  44. 


OF   BANKRUPTCY   OF   NON-TRADERS.  245 

before  the  commencement  of  the  party's  imprisonment,  *or 

with  the  view  or  intention  on  his  part  of  petitioning  the  ^         -^ 

court  for  his  discharge  under  the  act{n) 

Within  fourteen  days  next  after  the  making  of  the  vesting 
order,  or  within  such  further  time  as  the  court  thought  reasonable, 
a  schedule  was  required  to  be  delivered  into  the  court,  signed  by 
the  prisoner,  containing  a  full  description  of  his  name,  trade  or 
profession,  place  of  abode,  debts  and  property  of  every  descrip- 
tion.(o)  Immediately  after  the  filing  of  this  schedule,  a  time  and 
place  were  appointed  by  the  court  for  the  prisoner  to  be  brought 
up  to  be  dealt  with  according  to  the  act,(^)  of  which  due  notice 
was  given  to  the  creditors.f^/)  His  schedule  was  then  examined 
into  on  oath  by  the  court;  and  any  creditor  might  oppose  his  dis- 
charge, and  for  that  purpose  might  put  such  questions  to  the 
prisoner  and  examine  such  witnesses  as  the  court  thought  fit.(r) 
After  such  examination  the  court  was  then  empowered,  upon  the 
prisoner  swearing  to  the  truth  of  his  schedule,  and  executing  the 
warrant  of  attorney  to  be  mentioned  afterwards,  to  adjudge  that 
such  prisoner  should  be  discharged  from  custody,  and  entitled  to 
the  benefit  of  the  act  as  to  the  several  debts  and  sums  of  money 
meotioned  in  the  schedule,  due  or  claimed  to  be  due,  at  the  time 
of  making  the  vesting  order,  from  the  prisoner  to  the  persons 
named  in  his  schedule,  or  for  which  such  persons  should  have 
given  him  credit  before  the  time  of  making  such  vesting  order, 
and  which  were  not  then  payable,  and  as  to  the  claims  of  all  other 
persons,  not  known  to  the  prisoner  at  the  time  of  the  adjudication, 
who  might  have  been  indorsees  or  holders  of  any  negotiable 
security  set  forth  in  the  schedule. (.s)  The  discharge  might  have 
*been,  in  the  discretion  of  the  court,  either  immediate,  or  p^wro-i 
miglit  have  been  postponed  for  six  months ,(;!)  and  in  cer-  ^  -• 
tain  cases  of  flagrant  misconduct  it  might  have  been  postponed  for 
any  period  not  exceeding  three  ycars.(?^) 

The  insolvent  being  thus  discharged  was  free  from  any  future 

(m)   1  &  2  Vict.  c.  110,  s.  59.     See  Ilarrii'  v.  Lloyd,  6  Beav.  426  ;  Jnckson  v.  Thompson, 
2  Q.  B.  887,  E.  C.  L.  R.  vol.  42;   ^  Man.  &  Gr.  621,  E.  C.  L.  R.  vol.  42. 
(o)   Sect.  69.  {fj)   Sect.  71. 

{p)   Sect.  70.  (r)   Sect.  72. 

(j»)  Sect.  75.     Leonard  v.  Baker,  15  Mee.  &  \Vel.s.  202. 
(<)  Sect.  76.  (m)   Sects.  77,  78, 


246  OF   CHOSES   IN   ACTION. 

imprisonment,  and  his  property  was  also  free  from  execution,  at 
the  suit  of  his  creditors,  for  the  debts  mentioned  in  the  sched- 
ule.(a:)  And  the  costs  of  actions  and  suit8,(?/)  and  the  claims  of 
annuity  creditors, (^'j  might  have  been  comprised  in  such  discharge. 
The  discharge,  however,  was  not  like  that  of  bankruptcy,  final 
and  complete  ;  for  before  any  adjudication  was  made,  the  prisoner 
was  recpiired  to  execute  a  warrant  of  attorney,  authorizing  the 
entering  up  of  a  judgment  against  him  in  one  of  the  superior 
courts  at  Westminster,  in  the  name  of  the  assignee  or  assignees, 
for  the  amount  of  the  prisoner's  unsatisfied  debts  as  stated  in  the 
schedule.  And  if  at  any  time  it  should  have  appeared  to  the 
satisfaction  of  the  court  that  the  prisoner  was  of  ability  t^  pay 
such  debts,  or  any  part  thereof,  or  that  he  was  dead  leaving  assets 
for  that  purpose,  the  court  might  have  permitted  execution  to  be 
taken  out  upon  the  judgment  for  such  sum  as  it  might  have 
ordered,  such  sum  to  be  distributed  ratably  among  the  credi- 
tors. («) 

Under  certain  circumstances,  an  insolvent  might,  b}*  other  acts 
of  Parliament,  have  obtained  as  complete  a  discharge  from  his 
r*i  KAi  ^^^*^  ^^  if  ^^  ^^^*^  become  *bankrupt.(6)  The  acts,  how- 
^  -^  ever,  only  applied  to  such  persons  as  had  become  indebted 
without  any  fraud,  or  gross  or  culpable  negligence.  Accordingly, 
no  person  was  allowed  to  take  the  benefit  of  such  acts  if  his  debts 
had  been  contracted  by  any  manner  of  fraud  or  breach  of  trust, 
or  any  prosecution  wherebj'  he  had  been  convicted  of  any  ofl:ence, 
or  without  having,  at  the  time  of  becoming  indebted,  a  reasonable 
or  probable  expectation  of  being  able  to  pay  the  debts ;  or  if  such 
debts  were  contracted  by  reason  of  any  judgment  in  any  proceed- 
ing for  breach  of  the  revenue  laws;  or  in  any  action  for  breach 
of  promise  of  marriage,  seduction,  criminal  conversation,  libel, 
slander,  assault,  battery,  malicious  arrest,  malicious  suing  out  of 
a  fiat  in  bankruptcy,  or  malicious  trespass. (c)  With  these  excep- 
tions, any  person  indebted,  not  being  a  trader  within  the  bank- 
rupt laws,  or  being  such  trader,  but  owing  debts  amounting  in 

(x)  Sects.  90,  91.  (y)  Sect.  79. 

(2)  Sect.  80.     See  Bennett  v.  Burton,  12  Ad.  &  Ell.  657,  E.  C.  L.  R.  vol.  40. 

(a)  Sect.  87.     See,  also,  sects.  88  and  89.     See  Ilawkes  v.  Halliwell,  2  Sma.  &  Giff.  498. 

(b)  Stats.  5  &  6  Vict.  c.  116  ;  7  &  8  Vict.  c.  96 ;  10  &  11  Vict.  c.  102. 

(c)  Stat.  5  4  6  Vict.  c.  116,  s.  4 ;  7  &  8  Vict.  o.  96,  s.  24. 


OF   BANKRUPTCY   OF   NON-TRADERS.  247 

the  whole  to  less  than  300?.,  might,  whether  he  should  have  already 
been  in  prison  or  not,(d)  have  applied  for  the  protection  of  his 
person  from  process,  on  making  a  fall  disclosure  and  surrender  of 
all  his  estate  and  effects  for  the  payment  of  his  debts.  The  ap- 
plication was  made  to  the  Court  for  the  Relief  of  Insolvent 
Debtors.(e)  But  if  the  petitioner  should  not  have  resided  for  the 
last  six  calendar  months  within  twenty  miles  of  London,  but 
should  have  resided  for  that  time  within  the  district  of  a  county 
court,  application  must  then  have  been  made  to  such  county 
court.(/)  The  whole  estate  and  effects  of  the  insolvent  were 
then  vested  in  the  provisional  assignee  of  the  Insolvent  Court,  or 
in  the  clerk  of  the  county  court,  as  the  case  might  be,  for  the 
benefit  *of  all  the  creditors  ratably.(/7)  But  the  wearing  r--^-.rr-, 
apparel,  &c.,  of  the  petitioner  and  his  family,  not  exceed-  '-  -' 
ing  the  value  of  20L,  might  have  been  excepted,  as  in  the  other 
Insolvent  Act,  provided  such  excepted  articles,  and  the  values 
thereof,  were  fully  and  truly  described.(A)  With  the  exception 
of  the  warrant  of  attorney  given  by  the  prisoner  under  the 
other  Insolvent  Act,  the  provisions  of  these  acts  were  generally* 
similar  to  those  of  that  act.  The  filing  of  every  petition  under 
these  acts  was  required  to  be  registered  in  the  registry  for 
judgments  of  the  county  courts.(() 

In  the  reign  of  George  III  an  act  was  passed  for  the  discharge 
of  debtors  in  execution  upon  any  judgment  for  any  debt  or  dam- 
ages not  exceeding  201. ,  exclusive  of  costs.  (^)  But,  as  it  is  now 
provided  that  no  person  shall  be  taken  or  charged  in  execution 
upon  any  judgment  in  any  action  for  the  recovery  of  any  debt, 
wherein  the  sura  recovered  shall  not  exceed  20/.,  exclusive  of 
costs,(/)  this  act  may  now  be  considered  as  almost  obsolete. 

Since  the  Bankruptcy  Act,  1861, (m)  a  complete  change  has 
been  made  in  the  law  with  respect  to  the  insolvency  of  persons 
not  in  trade.     That  act  repeals  all  the  above-mentioned  acts  for 

id)   Stats.  7  &  8  Vict.  c.  96,  s.  6  ;   10  &  11  Vict.  c.  102,  s.  7. 

(e)   Stat.  10  A  11  Vict.  c.  102,  ss.  6,  8. 

(/)  Ibid.  8.  6. 

(§■)  Stats.  5  &  6  Vict.  c.  116,  s.  7  ;   10  &  11  Vict.  c.  102,  s.  5. 

(A)  Stat.  7  &  8  Vict.  c.  96,  s.  9. 

(t)  Stat.  17  &  18  Vict.  c.  16,  s.  2.     See  a>ile,  p.  100. 

(/.)  Stat.  48  Geo.  Ill,  c.  12.3.     See  Tol.son  v.  Dyke.s,  1  Phillips,  4.39. 

(0   Stat.  7  &  8  Vict.  c.  96,  s.  57.  (wt)  Stat.  24  &  25  Vict.  c.  \U. 


248  OF   CHOStS   IN   ACTION. 

the  relief  of  insolvent  debtors,  and  abolishes  the  court  for  their 
relief.(>^)  All  persons,  whether  traders  or  not,  are  now  subject  to 
the  bankrupt  law  ;(o)  but  no  person  is  to  be  adjudged  a  bankrupt, 
except  in  respect  of  some  one  of  the  acts  of  *bankruptcy 
L        *-'    described  in  the  act  as  applicable  to  a  non-trader.(p) 

The  following  acts  committed  by  non-traders  are  acts  of  bank- 
ruptcy. If  any  person,  not  being  a  trader,  shall,  with  intent  to 
defeat  or  delay  his  creditors,  depart  this  realm,  or  being  out  of 
this  realm  shall  with  such  intent  remain  abroad,  or  shall  with 
sticli  intent  make  any  fraudulent  conveyance,  gift,  delivery,  or 
transfer  of  his  real  or  personal  estate,  or  any  part  thereof  respec- 
tively, such  person  shall  be  deemed  to  have  thereby  committed 
an  act  of  bankruptcy :  provided  always,  that  before  any  adjudi- 
cation in  bankruptcy  shall  be  made  against  the  debtor,  under  this 
section,  the  following  rules  shall  be  observed: 

1.  A  copy  of  the  petition  for  adjudication  shall  be  served  per- 

sonally on  the  debtor,  either  within  the  jurisdiction,  or  in 
such  place  or  country,  or  within  such  limits  abroad,  as  the 
court  shall,  upon  application  for  that  purpose,  direct: 

2.  Such  copy  of  petition  shall  have  indorsed  thereon  a  memoran- 

dum, in  a  form  settled  by  a  general  order,  specifying  the 
time  within  which  the  debtor  is  to  appear  on  such  petition; 
and  such  time  shall,  when  the  service  is  to  be  made  abroad, 
be  the  time  which  the  court  shall  think  reasonable,  having 
regard  to  the  place  or  country  where  the  service  is  to  be 
made : 

3.  In  no  case  shall  the  time  for  appearance  be  less  than  thirty 

days  after  service : 

4.  If  such  personal  service  has  not  been  eifected,  the  court 

must  be  satisfied  that  every  reasonable  eftbrt  was  made  to 
effect  the  same,  and  that  the  *attempt8  to  serve 
L  ^ '  J    such  petition  came  to  the  knowledge  of  the  debtor, 
and  were  defeated  by  his  conduct : 

5.  If  at  the  expiration  of  the  time  limited  for  appearance  the 

court  shall,  on  the  hearing  of  such  petition,  be  satisfied 

(7i)  Sects.  19-27.  (p)  Stat.  24  &  25  Vict.  c.  134,  s.  69. 

(o)  Sect.  69. 


OF    BANKRUPTCY   OF    NON-TRADERS.  249 

that  an  act  of  bankruptcy  has  been  committed  within  the 
meaning  of  this  section,  it  may  adjudge  such  debtor  to  be 
a  bankrupt. 

It  is  also  an  act  of  bankruptcy  for  a  non-trader  to  lie  in  prison 
for  debt  for  two  calendar  months,  fourteen  days  only  being  suf- 
ficient for  a  trader,  (g)  Escape  out  of  custody  for  debt  is  also  an 
act  of  bankruptcy. (r)  A  declaration  of  insolvency  is  also  an  act 
of  bankruptcy  whether  the  insolvent  be  a  trader  or  not.(5)  And 
so  is  his  insolvency  or  bankruptcy  in  any  of  the  colonies.(^)  A 
non-trader  may  also  commit  an  act  of  bankruptcy  by  non-pay- 
ment of  a  judgment  debtor  summons;  but  one  calendar  month 
must  elapse  from  the  signing^  of  judgment,  instead  of  a  week 
only  as  in  the  case  of  a  trader. (i<)  And  in  the  case  of  any  order 
of  equity,  bankruptcy,  insolvency,  or  lunacy,  for  payment  of 
money,  two  calendar  mouths  are  allowed  to  a  non-trader  after 
service  on  him  of  the  peremptory  order,  instead  of  seven  days  as 
in  the  case  of  a  trader.(x) 

"  The  Bankruptcy  Act,  1861,"  contains  provisions  for  the  dis- 
charge from  prison  of  pauper  and  lunatic  prisoners  for  debt. 
These  provisions  apply  both  to  traders  and  non-traders. (?/)  This 
act  also  contains  provisions  for  the  payment  of  a  portion  of  the 
pay,  half-pay,  salary,  *emolument,  or  pension  of  any 
bankrupt  to  his  assignees  if  sanctioned  by  the  chief  offi- 
cer of  the  department  to  which  he  may  belong  or  may  have  be- 
longed ;(^)  also  for  the  sequestration  of  the  profits  of  the  benefice 
of  any  bankrupt  who  is  a  beneficed  clergyman. (a) 

After  the  adjudication  of  bankruptcy  has  taken  place,  the  pro- 
ceedings are  now  the  same,  w^hether  the  bankrupt  may  have  been 
a  trader  or  not. 

(?)   Stat.  24  &  25  Vict.  c.  134,  s.  71  ;  atite,  p.  126. 

(r)   Ante,  p.  126.  (x)   Seot.  77;  ante,  p.  129. 

(s)  Sect.  72.  (y)  Sects.  98-107. 

(t)  Sect.  75,  avte.,  p.  128.  (z)  Stat.  24  &  25  Vict.  o.  134,  s.  134. 

(?0  Sect.  76  ;  ante,  p.  128.  (a)  Sect.  135. 


250  OF   CIIOSES  IN   ACTION. 


[*159]  *CIIAPTER   VI. 

OF    INSURANCE. 

Having  now  considered,  though  very  briefly,  the  subject  of 
debts  generally,  there  remain  certain  debts,  payable  on  contin-, 
gencics,  which  deserve  a  separate  notice,  namel3',  debts  arising 
under  contracts  to  insure,  efiected  by  policies  of  insurance.  A 
policy  of  insurance,  or  assurance,-  is  the  name  given  to  an  instru- 
ment by  which  a  contract  to  insure  is  entered  into;  and  a  con- 
tract to  insure  is  a  contract  either  to  indemnify  against  a  loss 
which  may  arise  on  the  happening  of  some  event,  or  to  pay,  on 
the  happening  of  some  event,  a  sum  of  money  to  the  person 
insured.*  The  most  usual  kinds  of  insurance  are,  insurance  of 
lives,  insurance  against  loss  by  fire,  and  insurance  of  shij^s  and 
their  cargoes  against  the  perils  of  the  seas. 

1  Insurance  is  a  contract,  whereby  for  a  other,  that  he  shall  not  suffer  loss,  damage,  or 
stipulated  consideration,  one  party  under-  prejudice,  by  the  happening  of  the  perils 
takes  to  indemnify  the  other  against  certain  specified,  to  certain  things  which  may  be  ex- 
risks.  Marine  insurance  is  a  contract,  where-  posed  to  them  ;"  5  Bos.  &  Pul.  R.  301,  Law- 
by  for  a  consideration  stipulated  to  l)e  paid  rence,  J. 

by  one  interested  in  a  ship,  freight,  or  cargo,  Insurance  may  be  defined,  a  contract,  by 
subject  to  the  risks  of  marine  navigation,  an-  which,  in  consideration  of  a  certain  sum,  one 
other  undertakes  to  indemnify  him,  against  party  agrees  to  indemnify  another,  against 
some  or  all  of  those  risks,  during  a  certain  pe-  risks  incurred  in  a  certain  manner,  during  a 
riod  or  voyage.  The  other  species  of  insur-  stipulated  period  ;  48  Law  Mag.  251. 
ance  most  in  use,  are  those  against  loss  by  The  written  instrument  in  which  the  con- 
fire  on  land,  and  loss  of  life ;  1  Phill.  on  tract  of  marine  insurance  is  embodied,  is 
Ins.  1.  called  a,  policy  of  insurance.     It  is  a  printed 

Mr.   Justice  Lawrence  says  :     "  The  con-  or  written  contract,  in  which  the  premium, 

tract  of    insurance  is  applicable  to  protect  the  risk  insured  against,  the  names  of  the  un- 

men    against   uncertain    events,   which    may  derwriters,  and  the  sum  insured,  are  to  be  in- 

in  anywise  be  of  disadvantage  to  them  ;"  5  serted  ;  1  Arnould  on  Ins.  16.     Policy,  is  the 

B.  &  P.   R.   301,  Lueena  v.  Crawford.      See,  name  given  to  the  instrument,  by  which  the 

for    sundry    definitions    of    insurance,     Mr.  contract  of  indemnity  is  effected  between  the 

Sergt.  Coleridge's  argument  in  Patterson  v.  insurer  and  insured  ;  and  it  is  not,  like  most 

Powell,  9  Bing.   R.  320  ;   1  Phill.  on  Ins.,  p.  contracts,  signed  by  both  parties,  but  only  by 

1,  n.   (a).  the  insurer,  who,  on  that  account,  it  is  sup- 

"  Insurance  is  a  contract,  by  which  the  one  posed,  is  denominated  an  underwriter  ;  Park 

party,  in  consideration  of  a  price  paid  to  him  on  Ins.  1. 
adequate  to  the  risk,  becomes  security  to  the 


OF   INSURANCE.  251 

And  first,  as  to  life  insurance.^  The  advantages  of  life  insur- 
ance are  now  so  well  known,  that  there  is  no  occasion  to  dilate 
upon  them.  By  payment  of  a  small  annual  premium  during  the 
life  insured,  a  sum  of  money  may  be  secured  at  his  decease, 
applicable  to  the  payment  of  his  debts,  for  a  provision  for  his 
family,  or  any  other  purposes.  But  as  the  insurance  of  lives 
and  other  events,  in  which  the  person  insured  has  no  interest,  is 
often  nothing  more  than  a  mischievous  kind  of  gaming,  it  is 
enacted,  by  an  act  of  the  14th  of  George  III,  that  no  insurance 
shall  be  made  on  the  life  of  any  person,  or  on  any  other  event 
whatsoever,  wherein  the  person  for  whose  use  and  benefit,  or  on 
whose  account  such  policy  shall  be  made,  shall  have  no  interest, 
or  by  way  of  gaming  or  wagering;  and  that  *every  such  r^-,^^-, 
assurance  shall  be  null  or  void,  to  all  intents  and  purposes  '-  -" 
whatsoever ;(a)  and  that  it  shall  not  be  lawful  to  make  any  policy 
on  the  life  of  any  person,  or  other  event,  without  inserting  in  the 
policy  the  person's  name  interested  therein,  or  for  whose  use  or 
benefit,  or  on  whose  account  such  policy  is  made;(6)  and  that  in 
all  cases  where  the  insured  hath  an  interest  in  such  life  or  event, 
no  greater  sum  shall  be  recovered  or  received  from  the  insurer 
than  the  amount  or  value  of  the  interest  of  the  insured  in  such 
life  or  other  event.(c-)  But  this  act  does  not  extend  to  insurances 
bond  fide  made  on  ships,  goods,  or  merchandises,(c/)  with  respect 
to  which  provisions  have  been  made  by  another  act  of  Parlia- 
ment.(e)     Every  person  is  considered  to  have  a  sutficient  interest 

(«)   Stat.  14  Geo.  Ill,  c.  48,  s.  1.     Shilling  v.  Accidental  Death  Insurance  Company,  2 
H.  k  N.  42. 

(h)   Sect.  2.    Hodson  v.  Observer  Life  Assurance  Society,  8  E.  &  B.  40,  E  C.  L.  R.  vol.  92. 
(c)   Sect.  3.  {d)  Sect.  4. 

{r)    Stat.  19  Geo.  II,  c.  37. 


'  Insurance  upon    life,    is  a  contract,   by  "  An  insurance  upon  life  is  a  contract,  by 

which  the  insurers   undertake,  in  considera-  which  the   underwriter,    for   a   certain  sum, 

tion  of  a  gross  sum  paid  down,  or,  as  is  most  proportioned   to  the  age,   health,   profession, 

usual,  of  an  annual  payment,  to  pay  the  per-  and  other  circumstances  of  the  person  whose 

son  for  whose  benefit  the  insurance  is  effected,  life  is  the  object  of  insurance,  engages  that 

or  the  personal  representatives  of  the  insured,  the  person  shall  not  die  within  the  time  lira- 

as  the  case  may  be,  either  a  stipulated  sum,  ited  in  the  policy  ;  or  if  he  do,  that  he  will 

or  an   annuity,  upon  the  death  of  the  party  pay  a  sum  of  money  to  him  in  whose  favor 

insured,  whenever  it  may  happen,  if  the  in-  the  policy  was  granted  ;"  Angell  on  Fire  and 

Burance  be  made  for  the  whole  term  of  life  ;  Life  Insurance,  p.  334. 

or,    if  the  insurance  be  made  for  a  limited  Dal  by  v.  The  India  and  London  Life  A.s- 

period,    in    case    the    death    of    the    insured  surance  Co.,  28  Eng.  L.  &  Eq.  R.  312. 
happens  within  that  period;  Ellis  on  Ins.  97. 


252  OF   CHOSES   IN   ACTION. 

in  the  duration  of  his  own  life  to  sustain  his  own  insurance  of  it; 
but  if  he  sliould  afterwards  put  an  end  to  his  life,  or  die  by  the 
sentence  of  the  law,  the  insurance  will  be  void  in  the  hands  of 
his  executors;  and  no  provision  to  the  contrary  contained  in  the 
policy  of  insurance  will  be  of  any  avail. (/)  The  assignee  of  a 
person  who  has  insured  Ins  own  life  is  not  required  by  the  above- 
mentioned  statute  to  have  any  interest  in  the  life  of  such  person, 
for  the  statute  makes  no  mention  of  the  assignment  of  policies.f*/) 
A  creditor  has  an  insurable  interest  in  the  life  of  his  debtor  to 
the  extent  of  his  debt;  but  if  the  debt  should  be  discharged  from 
any  other  source,  it  was  formerly  held  that  the  policy  would 
thenceforth  be  void  for  want  of  interest.(A)  This  strict  law  was 
r===i  "n  ^^*^^'  bowever,  usually  taken  advantage  of  by  *the  assurance 
-*  offices,  who  generally  paid  the  sums  insured  without  any 
inquiry  as  to  the  extent  of  the  interest  of  the  party  insured  in  the 
life  on  which  the  insurance  had  been  effected.(i)  And  by  recent 
decisions,(/i-)  the  doctrine  that  a  contract  for  life  assurance  is  a 
contract  for  indemnity  only  has  been  overruled;  so  that  if  the 
person  insuring  has  an  insurable  interest  at  the  time  of  effecting 
the  policy,  the  subsequent  loss  of  such  interest  will  not  render 
the  policy  void.  An  interest  as  trustee  is  sufficient  to  support  a 
life  insurance. (/)  But  a  father  has  not  such  an  interest  in  the  life 
of  his  son  as  to  warrant  an  insurance  of  it  for  his  own  benefit. (?>it)^ 

{f)  Amicable  Assurance  Society  v.  Bolland,  4  Bligh,  N.  S.  194,  reversing  Bolland  v. 
Disney,  3  Russ.  351 ;  see  Clift  v.  Schwabe,  3  C.  B.  437,  E.  C.  L.  R.  vol.  54. 

(§•)  Ashley  v.  Ashley,  3  Sim.  149. 

(A)   Godsnll  V.  Boldero,  9  East,  72;  S.  C.  2  Smith's  Leading  Cases,  157. 

{i)  Lloyd  &  Goold,  Cas.  Temp.  Sugden,  291. 

(/.)  Dalby  v.  India  and  London  Life  Assurance  Company,  15  C.  B.  365,  E.  C.  L.  R.  vol. 
80  ;  S.  C.  18  Jur.  1024;  Law  v.  London  Indisputable  Life  Policy  Company,  1  Kay  &  John. 
223. 

(I)  Tidswell  v.  Angerstein,  Peake,  N.  P.  Cases,  151;  Collett  v.  Morrison,  9  Hare,  102, 
176. 

(to)  Halford  v.  Kymer,  10  Barn.  &  Cres.  724,  E.  C.  L.  R.  vol.  21. 

1  It  is  pretty  well  settled,  that  he  who  is  to  268  ;  Bevin  v.  The  Com.    Mutual  Life  Ins. 

reap  the  benefit  of  an  insurance  made  upon  Co.,   23  Conn.  R.  244.     It  has  been  decided 

the  life  of  a  person,  must  have  some  interest  on  this  point,  that  a  creditor  has  a  sufficient 

in  that  life  ;  Valton  v.  National  Loan  Fund  interest  in  the  life  of  his  debtor,  to  insure  that 

Life  Asso.  Soc,  22  Barb.  R.  9  ;  Ruse  v.  Mu-  life  ;  Morrell  v.  Trenton  Mutual  Life  and  F. 

tual  Ins.  Co.,  23  N.  Y.  R.  516;  but  the  in-  Ins.  Co.,  10  Cush.  R.  282  ;  and  that  he  may 

terest  necessary  is  slight;  Hoyt  v.  N.  Y.  <fee.  insure  for  a  larger  sum  than  his  debt;  Am. 

Ins.  Co.,   3  Bosw.  R.  440  ;   Muller  v.  Eagle  Life  and  He.alth  Ins.  Co.  v.  Robertshaw,  26 

Life  and  Health  Ins.  Co.,  2  E.  D.  Smith's  R.  Pa.  St.  R.  189  ;  so  al?o,  that  a  father  has  a 


OF   INSURANCE. 


25B 


By  recent  statutes, (??)  policies  of  life  insurance  are  subject  to 
stamp  duties  according  to  the  table  in  the  note.(o)^ 

Insurance  against  fire  is  a  contract  to  indemnify  against  loss  by 
fire,  and  is  usually  renewed  from  year  to  year  on  payment  of  a  pre- 
mium.^ The  person  who  effects  such  an  insurance  must  have  an 
interest  in  the  property  insured,  and  he  cannot  recover  beyond 

(w)   stats.  16  &  17  Vict.  cc.  59,  63,  ss.  10,  11 ;  23  &  24  Vict.  c.  Ill,  s.  10.  s.    d. 

(o)   AVhere  the  sum  insured  does  not  exceed  £25, 0     3 

Exceeding  £25,   and  not  exceeding  £500,    then  for  every  £50,    and  any 

fractional  part  of  £50, 0     6 

Exceeding  £500,  and  not  exceeding  £1000,  then  for  every  £100,  and  any 

fractional  part  of  £100, 10 

Exceeding  £1000,  then  for  every  £1000,  and  any  fractional  part  of  £1000,   10     0 
The  stamp  on  policies  for  accidental  death  or  personal  injury,  is  regulated 
by  Stat.  23  <t  24  Vict.  c.  111. 


sufficient  insurable  interest  in  the  life  of  his 
son  ;  Loomis  v.  Eagle  Life  and  Health  Ins. 
Co.,  6  Gray's  R.  396  ;  and  a  divorced  wife  in 
that  of  her  former  husband  :  McKee  v.  Phoe- 
nix Ins.  Co.,  28  Mo.  R.  383. 

An  assignee  of  a  policy  of  life  insurance, 
however,  is  not  required  to  have  any  interest 
in  the  life  insured  ;  St.  John  v.  Am.  Mutual 
Life  Ins.  Co.,  3  Kernan's  R.  31  ;  nor  need  in- 
terest be  shown  to  entitle  him  to  his  action  ; 
Trenton  Mutual  Life  and  F.  Ins.  Co  v.  John- 
son, 4  Zabr.  R.  676. 

In  Ruse  v.  Mutual  Benefit  Life  Ins.  Co., 
26  Barb.  R.  566,  it  was  held,  that  where  the 
statement  of  interest  has  been  accepted  by 
the  company,  it  is  sufficient  proof  of  interest. 

1  The  tax  imposed  on  policies  of  insur- 
ance, by  the  Internal  Revenue  Act,  as  amend- 
ed March  3d,  1865,  is  as  follows  : 

Insurance  {Life). — Policy  of  insurance, 
or  other  instrument,  by  whatever  name 
the  same  shall  be  called,  whereby  any 
insurance  shall  be  made  upon  any  life 
or  lives. 

When  the  amount  insured  shall  not  ex- 
ceed one  thousand  dollars,  twenty-five 
cents 25 

Exceeding  one  thousand  dollars,  and  not 
exceeding  five  thousand  dollars,  fifty 
cents, 50 


Exceeding  five  thousand  dollars,  one  dol- 
lar,   $1  00 

Insurance  (ISlarine,  Inland  and  Fire). — 
Each  policy  of  insurance,  or  other 
instrument,  by  whatever  name  the 
same  shall  be  called,  by  which  insur- 
ance shall  be  made  or  renewed  upon 
property  of  any  description  ;  whether 
against  perils  by  the  sea,  or  by  fire,  or 
other  peril  of  any  kind,  made  by  any 
insurance  company,  or  its  agents,  or  by 
any  other  company  or  person,  the  pre- 
mium of  which  does  not  exceed  ten 
dollars,  ten  cents, 

Exceeding  ten,  and  not  exceeding  fifty 
dollars,  twenty-five  cents 

Exceeding  fifty  dollars,  fifty  cents,     .     . 


10 


2  Fire  insurance,  is  a  contract  in  the  nature 
of  an  indemnity,  given  by  the  insurers,  against 
such  loss  or  damage  by  fire  as  may  happen  to 
the  insured,  in  respect  of  the  houses,  build- 
ings, stock,  merchandise,  or  other  articles  /  j 
covered  by  the  policy  ;  Ellis  on  Ins.  1.  ^/  f^ 

An  insurance  against  fire,  is  a  cdhlT-acrty  /  f 
which  the  insurer,  in  consideration  of  the 
premium  which  he  receives,  undertakes  to 
indemnify  the  insured  against  all  losses  which 
he  may  sustain  in  his  house,  or  goods,  by 
means  of  fire,  within  the  time  limited  in  the 
policy  i  2  Park,  on  Ins.  (Eng.  ed.  1842),  950. 


254  OF   CHOSES   IN   ACTION. 

r*i  ^01  *^^^  extent  of  his  ^interest;  neither  can  he  assign  his  policy 
'-  "-'  without  the  consent  of  the  in8urer8.(p)  "When  the  build- 
ing insured  is  situate  within  the  limits  of  the  Metropolitan  Build- 
ing Acts,  any  person  interested  may  procure  the  insurance  money, 
in  case  of  iire,  to  be  laid  out  in  rejjairs  or  rebuilding.(9')  A  cov- 
enant to  insure  any  building  within  such  limits  is  therefore 
tantamount  to  a  covenant  to  repair  to  the  extent  of  such  insurance, 
and  if  entered  into  by  a  lessee  in  his  lease,  will  run  iviih  the  land 
so  as  to  be  binding  on  the  assignee  of  the  lease. (7')  And  it  seems 
that,  according  to  the  true  construction  of  the  act  of  Geo.  Ill  re- 
lating to  this  subject,  the  law  is  the  same  even  if  the  building  be 
situate  beyond  the  above-mentioned  limits. (s)  A  recent  enact- 
ment empowers  a  court  of  equity  to  relieve  against  a  forfeiture 
for  breach  of  a  covenant  or  condition  to  insure  against  fire,  when 
no  loss  or  damage  by  fire  has  happened,  and  the  breach  has,  in 
the  opinion  of  the  court,  been  committed  through  accident  or 
mistake,  or  otherwise  without  fraud  or  gross  negligence,  and  there 
is  an  insurance  on  foot  at  the  time  of  the  application  to  the  court 
in  conformity  with  the  covenant  to  insure, (?■)  But  the  same  per- 
son is  not  to  be  relieved  more  than  once,  or  where  a  forfeiture 
has  been  already  waived  out  of  court.(M)  It  is  also  provided  that 
the  person  entitled  to  the  benefit  of  a  covenant  on  the  part  of  the 
lessee  or  mortgagee  to  insure  against  fire  shall,  on  loss  or  dam- 
age by  fire  happening,  have  the  same  advantage  from  any  then 
subsisting  insurance  of  the  premises,  effected  by  the  lessee  or 
*mortgagee,  or  by  any  person  claiming  under  him,  but  not 
^  -^  effected  in  conformity  with  the  covenant,  as  he  would  have 
from  an  insurance  effected  in  conformity  with  the  covenant.(.r) 
There  is  a  further  enactment,  which  will  be  very  beneficial  to  the 
purchasers  of  leasehold  property,  namely,  that  where,  on  a  bona  fide 
purchase  of  such  property,  the  purchaser  is  furnished  with  a  receipt 
for  the  last  payment  of  rent  accrued  due  before  the  completion  of 
the  purchase,  and  an  insurance  is  subsisting  in  conformity  with  the 

(p)   Lynch  v.  Dalzell,  4  Bro.  Pari.  Cas.  431 ;  Saddlers'  Company  v.  Badcock,  4  Atk.  554. 

((/)  Stat.  14  Geo.  Ill,  c.  78,  s.  83.  This  section  is  not  repealed  by  stat.  18  &  19  Vict;  c. 
122,  s.  109. 

(r)  Vernon  v.  Smith,  5  Barn,  k  Aid.  1,  E.  C.  L.  R.  vol.  7  :  see  Principles  of  the  Law  of 
Real  Property,  316,  2d  ed.  ;  326,  3d  ed.  ;  331,  4th  ed.  ;  842,  5th  ed.  ;  359,  6th  ed. 

(s)  See  4  Jur.  N.  S.  pt.  2,  p.  132;  Simpson  v.  Scottish  Union,  Ac,  V.  C.  W.,  11  W.  R. 
4.39. 

(0   Stat.  22  k  23  Vict.  c.  35,  s.  4:  Page  v.  Bennett,  2  Giff.  117. 

(«)   Sect.  6.  (a:)   Stat.  22  &  23  Vint.  c.  35,  s.  7. 


OF    INSURANCE.  255 

lessee's  covenant  to  insure,  the  purchaser  shall  not  be  liable  for  any 
breach  of  such  covenant,  committed  at  any  time  before  the  com- 
pletion of  the  purchase,  of  which  he  had  not  notice  before  such 
completion.  (3/)^ 

The  insurance  of  ships  and  their  cargoes  from  the  perils  of  the 
seas  is  a  matter  belonging  rather  to  mercantile  law  than  to  the 
department  of  conveyancing.^  In  this  kind  of  insurance,  as  well 
as  in  the  others,  an  interest  in  the  property  insured  must  gen- 
erally belong  to  the  party  eifecting  the  insurance,  if  the  ship  be  a 
British  vessel,  or  the  goods  be  laden  on  board  any  such  vessel. (z) 
Full  infofmation  on  this  subject  will  be  found  in  ^ark  on  Insur- /  . 
ance,  Arnould  on  Marine  .Insurance,  Abbott,  on  Sliippin^g,  and' 
in  the  chapter  on"maritime  insurance  in  the  late  Ji_Wj..,Simth^ 
admirable   CQ^$end2iy](i^,.ofJdjercant  Connected  with 

maritime  insurance  are  bottomry  and  respondentia.  Bottomry  is 
an  agreement  by  which  a  vessel  is  hypothecated  or  j)ledged  by 
the  owner  for  the  payment,  in  the  event  of  her  voyage  terminating 
successfully,  of  money  advanced  to  him  for  the  use  of  the  vessel, 
together  with  interest,  which  interest,  in  consideration  of  the  risk 
incurred,  is  generally  far  beyond  tive  per  cent.,  formerly  the  legal 
rate.  Respondentia  is  a  somewhat  similar  *contract  with  ^ 
respect  to  the  cargo,  except  that  the  borrower  only  is  re-  '-  -' 
sponsible  in  the  event  of  the  safe  termination  of  the  voyage,  the 

{y)   Sect.  8.  {z)   Stat.  19  Geo.  II,  c.  37,  a.  1. 

1  A  covenant  made  by  a  lessee  to  repair,  or  might  be  brought  against  him  for  the  breach 

keep  in   repair,  the   demised  premises,  or  to  of  that  covenant,  before  the  expiration  of  the 

surrender,    or   leave    them,   in   good   repair,  term  ;    Buck  v.  Pike,  27  Vt.  R.  529. 

amounts   to   a   contract    of    insurance,    and  See,    further,   on    this    subject   generally, 

obliges  him  to  build  in  case  the  premises  be  West  v.  West,  7  J.  J.  Marsh.  R.  258;  Jacques 

burned :  Payne  v.  Haine,  16  M.  &  W.  R.  541 ;  v.  Gould,  4  Cush.  R.  384. 

Bullock  V.  Dommdt,  6  T.  R.  650  ;   Abby  v.  '^  Marine  insurance  is  a  contract,  whereby 

Billups,  35  Missi.  R.  618;   Nave  t;.  Berry,  22  one  party,  for  a  stipulated   sum,  undertakes 

Ala.  R.  382  ;    though   the   contrary  was  held  to   indemnify  the   other  against  loss,  arising 

in  Warner   v.  Hitchins,  5   Barb.  Sup.  C.  R.  from  certain  jjerils  or  sea  risks,  to  which  his 

066  ;    in  which  case  the  word  repair  was  not  ship,  merchandise,  or  other  interest,  may  be 

used,  but  the  covenant  was,  to  deliver  up  pos'  exposed  during  a  certain  voyage,  or  a  certain 

session  of  the  premises  at  the  end  of  the  term,  period  of  time  ;  1  Arnold  on  Ins.  2. 

in  as  good  order  and  condition  as  at  the  date  Marine  insurance  is  a  contract,  whereby, 

of  the  lease,  ordinary  wear  and  tear  excepted  ;  for  a  consideration  stipulated  to  be  paid,  by 

and  the  demised  premises  were  destroyed  by  one  interested  in  a  ship,   freight,   or  cargo 

fire.  subject  to  the  risks  of  marine  navigation,  an- 

Where    the    covenant    was    to    maintnin  other   undertakes   to   indemnify  him  against 

buildings,  it   was    held  that   the    lessee    was  some  or  all  of  tho.se   risks,  during  a  certain 

bound  by  it  at  all  times,  and  that  an  action  period  or  voyage;  1  Phill.  on  Ins.  1. 


256 


OF    CIIOSES   IN   ACTION. 


lender  liaving  no  lien  on  the  goods.(«)*     These  contracts  appear 
to  be  of  little  importance  since  the  repeal  of  the  usury  law. 


(a)   2  Black.  Com.  457. 


'  Bottomry  is  a  pledge  of  a  vessel  and  its 
freight,  deriving  its  name  from  tlie  bottom  or 
keel  of  the  ship. 

Respondentia  is  a  pledge  of  goods  laden  on 
board  a  vessel.  Most  modern  bottomry 
bonds,  however,  contain  a  pledge  of  ship, 
freight,  and  cargo.  The  terms  bottomry  and 
respondentia  are,  however,  often  used  synony- 
mously. By  the  civil  law  writers,  this  con- 
tract is  termed  Coutratu  la  grosse,  or,  a  la 
grosse  uveiilure,  Nauticum  faints  and  Con- 
tractus trajectitia.  yecunia..  Emerigon  gives 
rather  an  illustration  than  a  definition  of  the 
contract.  <  "The  lender,"  he  says,  "lends 
to  another  a  certain  sum  of  money,  upon 
the  condition  that,  in  case  of  the  loss  of  the 
efiects  for  which  that  sum  has  been  lent,  by 
any  peril  of  the  sea  or  vis  major,  the  lender 
shall  have  no  recourse  except  upon  what  shall 
remain;"  2  Emer.  385.  Again,  "Bottomry 
is  neither  a  sale,  nor  a  partnership,  nor  a 
loan  properly  so  called,  nor  an  insurance. 
It  is  difi'erent  from  all  the  other  contracts; 
it  constitutes  a  particular  species;"  Id. 
389-90.  According  to  Valin,  "  Bottomry 
is  a  contract  by  which  the  lender,  in  con- 
sideration, that  he  will  lose  his  money  if  the 
thing  upon  which  he  makes  the  loan  should 
perish  by  accident,  has  the  right  to  stipu- 
late an  extraordinary  interest  or  profit,  in 
case  the  thing  shall  arrive  safely  in  port;" 
Valin,  Book  3,  tit.  V,  p.  1.  Pothier's  defi- 
nition is  more  accurate.  "The  contract 
of  bottomry,"  he  says,  "is  a  contract  by 
which  one  of  the  parties,  who  is  the  lender, 
lends  to  the  other,  who  is  the  borrower,  a 
certain  sum  of  money,  upon  the  condition, 
that  in  case  of  the  loss  of  the  efiects  for  which 
this  sum  has  been  lent,  occasioned  by  some 
peril  of  the  sea,  or  accident  of  vis  major,  the 
lender  will  not  have  any  recourse  unless  it  is 
to  the  extent  of  what  remains,  and  that  in 
case  of  a  prosperous  arrival,  or  in  case  it 
shall  not  have  been  prevented  by  the  fault  of 
the  master,  or  of  the  mariners,  the  borrower 
shall  be  bound  to  return  to  the  lender  the 
sum  lent,  with  a  certain  stipulated  profit,  for 
the  price  of  the  risk  of  the  efiects,  of  which  the 


lender  has  charged  himself;"  Pothier  Traitc 
du  Prct.  a  la  grosse  aventure,  ^  1,  p.  1129. 

"  The  condition  of  the  bottomry  loan,  and 
of  the  obligation  of  the  borrower  included 
in  it,  exists  when  during  all  the  time  of  the 
risk  the  eflFects  upon  which  the  loan  has  been 
made,  have  not  been  taken  nor  lost,  how- 
ever damaged  they  may  have  been  by  the 
accidents  of  vis  viajor;  and  the.borrower,  in 
consequence  is  bound;"  Id.,  p.  11.33. 

"  If  only  a  part  of  the  said  efiects  have 
arrived,  and  the  residue  have  been  taken  or 
lost,  the  obligation  in  this  case,  only  exists 
to  the  extent  of  the  value  of  that  which  re- 
mains, and  it  is  dissolved  for  the  residue;" 
Id.,  p.  1134. 

It  combines  the  character  of  a  loan  and  a 
maritime  insurance — the  lender  being  the 
insurer  against  maritime  risks,  and  the  bor- 
rower the  assured  of  his  lender.  The  double 
office  of  lender  and  insurer  gives  the  latter  a 
right  to  demand  marine  interest,  or  fanus 
nauticum,  that  is,  interest  greatly  beyond 
the  ordinary  compensation  for  the  use  of 
money,  notwithstanding  usury  laws,  as  this 
interest  is  a  mixed  compensation  for  the  use 
of  the  money  lent,  and  insurance  against 
loss  by  marine  risks,  of  the  property  pledged 
in  bottomry  to  the  extent  of  the  loan. 

The  origin  of  the  contract  is  lost  in  a  re- 
mote antiquity.  It  existed  before  the  time 
of  Justinian,  and  it  is  treated  of  in  his  Digest 
and  Code.  It  was  known  among  the  Romans, 
under  the  titles  of  Nauticurn  fanus,  and 
Contractus  trajectitice  pecuiiia.  It  was 
doubtless  derived  by  the  Romans  from  the 
Greeks.  A  speech  of  Demosthenes  is  still 
preserved  to  us,  in  which  the  facts  are  stated 
to  be,  that  two  fraudulent  debtors  endeavored 
to  sink  the  ship  on  which  they  were  bound, 
after  having  failed  to  fulfil  the  promise  to 
embark  on  board  her  a  cargo,  hypothecated 
to  the  lender  of  a  very  considerable  sum; 
and  what  is  still  more  surprising,  Plutarch 
remarks  of  Demosthenes,  that  for  him  to 
accept  the  bribe  of  Harpaius,  was  natural 
enough,  as  his  father  had  lent  money  on 
maritime  interest ;  48  Law  Mag.,  252. 


OF    INSURANCE. 


257 


Until  quite  a  recent  period,  almost  all  the  ship  and  freight  have  the  same  owner,  and 
learning  on  this  subject,  was  to  be  found  in  are  both  hypothecated,  there  is  no  equity 
the  civil  law  books.  Now,  however,  bot-  which  forbids  the  creditor  from  resorting  to 
tomry  is  not  looked  upon  with  the  dislike  either  in  the  first  instance  for  the  payment  of 
which  was  exhibited  towards  it  in  the  time  his  bond.  Welsh  v  Cabot,  39  Pa.  St.  R.  .342. 
of  Demosthenes,  but  on  the  contrary,  the  The.  esseiitial  requisites  of  a  bottomry  bond  : 
contract  is  favored,  as  it  is  considered,  that    There    is    no    particular     form     necessary. 

is  for  the  general  advantage  of  the  ship-  Any  contract  in  language  setting  forth  the 
ping  interests  of  the  world,  that  bottomry  fundamental  properties  of  bottomry,  will  be 
transactions  should  not  be  rendered  too  dififi-  sufficient  evidence  to  sustain  the  contract, 
cult;  the  Vibelia,  1  Robinson,  Jr.,  R  p.  1 ;  "  We  have  not,"  says  Emerigon,  "  any  print- 
The  Zodiac,  1  Hagg.  Adm.  D  320  ;  The  Re-  ed  form  of  the  contract  of  bottomry  ;  the 
liance,  3  Id.  (^^  ;  The  Rubicon,  Id.  8.  Indeed,  draft  of  it  is  made  in  the  form  which  the 
courts  of  admiralty  in  the  general  exercise  parlies  find  appropriate.  It  is  sufficient  that 
of  their  jurisdiction,  are  not  governed  by  they  express  themselves  without  equivoca- 
the  strict  rules  of  the  common  law,  but  act  tion,  that  they  insert  the  usual  clauses,  and 
upon  enlarged  principles  of  equity  ;  The  that  they  stipulate  nothing  which  is  contrary 
Virgin,  8  Peters  R.  538  ;  The  Hero,  2  Dod.  to  the  nature  of  the  contract:"  2  Emerigon, 
R.  142.  Thus,  bottomry  bonds  may  be  sus-  400.  The  particular  voyage  on  which  the 
tained  in  part,  though  they  may  be  bad  in  vessel  is  bound,  need  not  be  stated  ;  The  Jane, 
part;  Abbott  on  Shipp.  1.59;  The  Nelson,  1  1  Dod.  R.  461.  And  like  all  other  contracts 
Hagg.  Adm.  D.  169;  The  Bridgewater,  01-  as  to  its  form,  it  must  comply  with  the  law  of 
cott's  Adm.  R.  35  ;  and  even  material  mis-  the  place  where  it  it  is  entered  into  ;  The 
takes  in  them  may,  it  seems,  be  reformed;  Nelson,  1  Hagg.  Ad.  D.  169.  "Sometimes  an 
The  Zephyr,  3  Mason  R.  341  ;  for  these  instrument  in  the  form  of  a  bond,  at  others 
bonds  are  not  to  be  construed  strictly,  but  in  the  form  of  a  bill  of  sale,  at  others  of  a 
liberally,  so  as  to  carry  into  effect  the  inten-  different  shape,  is  made  use  of;"  Abbjott^on 
tion  of  the  parties;  Pope  v.  Nickerson,  3  Shvpp,  158.  There  must  be  risk  incurred  by 
Story,  465.  the  lender.      "  Navigation,"  says  Emerigon, 

There  are  two  classes  of  bottomry  and  res-  vol.  ii,  39,  ' '  forms  the  only  object  of  bottomry, 
pondentia  bonds  ;  those  of  the  one  are  made  If  nothing  has  been  exposed  to  the  perils  of 
by  the  owner  of  the  property  pledged,  while  the  sea,  the  contract  has  never  been  bot- 
those  of  the  other,  can  only  be  made  by  the  tomry ;"  see  also  Jennings  v.  The  Ins.  Co.  of 
master  of  the  ship  bottomed,  or  in  which  Penna.,  4  Binn.  R.  244.  But  Ch.  J.  Tilgh- 
the  goods  are  carried.  The  former  are  re-  man  there  distinguished  the  case  before 
sorted  to  at  the  option  of  the  borrower,  as  a  him,  which  was  a  contract  stipulating  for 
means  of  procuring  money  on  a  ship,  or  for  more  than  legal  interest,  from  such  an  agree- 
an  adventure  ;  the  latter  can  only  be  created  ment,  made  to  secure  a  loan  with  legal  in- 
for  the  purpose  of  borrowing  money,  which  terest,  and  refused  to  express  an  opinion  as 
cannot   be    otherwise    obtained,    and    which    to  such  an  agreement.     The  fact  that  a  bot 


is  necessary  to  be  raised,  in  order  to  repair 
or  refit  a  vessel  which  has  become  unsea- 
worthy  ;  The  Packet,  3  Mason  R.  255  ;  The 
Gratitudine,  3  Robinson  R.  272  ;  and  see  The 
Panama,  Olcott's  Adm.  R.  343  ;  they  are 
made  by  the  master  of  the  vessel  virtute  ojji 


tomry  bond  only  bears  interest  at  the  ordi- 
nary rate,  is  a  reason  for  presuming  that  sea 
risk  was  not  contemplated  ;  The  Emancipa- 
tion, 1  Robinson,  Jr.,  R.  124  ;  The  Hero,  2 
Dod.  R.  142.  But  although  there  can  be  no 
valid  bottomry  contract  to  secure  a  loan,  un- 


m,  under  the  authority  conferred  on  him  by  less  the  lender  shall  agree  to  incur  sea  peril, 

law,  under  certain  circumstances,  to  pledge  yet   the  risk   may  be  assumed   for  any   given 

his  ship,  freight,  and   cargo,  or  any  of  them,  voyage,   or   for  any  definite  time  ;    Valin,  4  ; 

and  as  a  general  rule,  such  loans  can  only  be  The  Draco,  2  Sumner  R.  157  ;  The  Atlantic, 

effected  in  foreign  ports.     A  bottomry  bond  4  Newb.  Adm.  R.  514. 

may  be  given  by  a  substituted  master,  to  the  As  a  general  proposition  of  law,  it  is  un- 

consignee   of  the  vessel   who  had  appointed  doubtedly  true,  that  a  deed  extorted  by  ao- 

bim  i  The  Rubicon,   3  Hagg.  9.     Whore  the  tual  duress,  is  invalid  ;  and  this  principle  of 

17 


#- 


258 


OF   CnOSES    IN    ACTION. 


law  would  clearly  extend  to  viti;ite  a  bond  of 
bottomry,  compulsorily  obtained  by  duress 
from  the  master,  even  although  the  advances 
were  ninde  upon  the  promise  of  a  future  bond, 
and  the  bond  itself  was  taken  as  a  fulfilment 
of  that  promise.  But  it  does  not  follow  that 
such  an  instrument,  executed  while  the 
master  is  inipri.-oned,  though  at  the  suit  of 
the  bond-holder,  was  executed  under  duress, 
and  therefore  void  ;  The  Heart  of  Oak,  1 
W.  Robb.  213. 

When  the  bond  is  made  by  a  master  vir- 
tiite  officii,  it  must  ordi7iatily  be  given  in  a 
port  of  a  country  foreign  to  the  owners  of 
the  vessel.  But  this  may  be  a  port  sought  by 
a  vessel  in  distress  as  an  asylum,  called  a 
port  of  necessity  ;  or  it  may  be  the  port  of 
destination  of  the  vessel  :  Reade  v.  The  Com- 
mercial Ins.  Co.,  3  Johns.  R.  352  ;  Webb  v. 
Pierce,  Sprague's  R.  192.  There  are,  how- 
ever, some  exceptions  to  this  rule,  as  where 
the  master,  though  in  a  domestic  port,  has  no 
means  of  communicating  with  his  owners; 
La  Ysabel,  1  Dods.  R.  273,  or  where  the  own- 
ers have  become  insolvent :  The  Trident,  1 
Robinson,  Jr.,  29.  In  short  the  place  where  the 
vessel  is,  provided  she  is  on  a  voyage  and  is 
in  distress,  is  of  no  further  importance,  than 
that,  generally  speaking,  unless  the  vessel  is 
in  a  foreign  port,  there  will  be  no  necessity, 
and  hence,  no  right  on  the  part  of  the  master, 
to  raise  money  by  a  pledge  of  the  ship  and 
cargo,  or  of  either.  The  general  principle, 
that  bottomry  bonds  can  alone  be  given  for 
the  furtherance  of  the  voyage  in  which  the 
vessel  is  actually  engaged,  is  not  affected  by 
the  circumstance,  that  by  the  law  of  the 
country  where  she  is  seized,  the  vessel  may 
be  arrested  and  sold,  for  any  debt  owing  by 
the  owner,  to  a  creditor  residing  in  that  coun- 
try ;  The  Osmanli,  3  W.  Robb.  198. 

Another  requisite  of  the  contract  when 
made  by  a  master  is,  that  there  must  be  a 
necessity  for  the  loan  on  bottomry.  If  the 
repairs  and  supplies  are  in  a  just  sense  neces- 
sary, then  it  is  clear,  that  if  the  master  has 
no  other  means  of  meeting  the  expenditure, 
he  may  take  the  money  therefor  upon  bot- 
tomry; The  Ship  Fortitude,  3  Sumner  R. 
228;  Greely  v.  Smith,  3  W.  &  M.  R.  236. 

1.  There  must  be  a  necessity  for  the  sup- 
plies and  repairs,  for  the  safety  and  security 
of  the  vessel,  or  to  enable  her  to  prosecute 
her  voyage  ;  The  Aurora,  1  Wheat.  R.  103. 


The  necessary  repairs  for  which  a  vessel 
mny  be  bottomried,  mean  such  as  are  reason- 
ably fit  and  proper  for  the  ship  under  the  cir- 
cumstances, and  not  merely  such  as  are  abso- 
lutely indispensable  for  the  safety  of  the  ship, 
or  accomplishment  of  the  voyage.  The  money 
advanced,  should  at  the  time  appear  to  be 
needed  for  the  supplies  or  repairs,  but  all 
that  the  law  requires  is  an  apparent  neces- 
sity. A  bottomry  bond  may  be  given  to  pay 
off  a  former  bond  ;  and  if  such  former  bond 
was  valid,  the  latter  will  be  so  likewise  ;  The 
Aurora,  1  Wheat.  26.  It  would  seem  not  to 
be  incumbent  upon  a  foreign  merchant,  ad- 
vancing money  upon  bottomry  for  the  repairs 
of  a  vessel,  to  calculate  the  expediency  of 
such  repairs;  The  Vibelia,  1  W.  Rob.  10. 

A  public  advertisement  for  the  sale  of  a 
bottomry  bond,  by  auction,  to  the  lowest 
bidder,  at  a  foreign  port,  will  not  discharge 
a  bonu  fide  purchaser,  from  the  necessity  of 
making  reasonable  inquiry  as  to  the  actual 
existence  of  "an  unprovided  necessity." 
Such  "an  unprovided  necessity''  is  essential 
to  the  validity  of  a  bottomry  bond,  and 
therefore  the  want  of  it  will  render  a  bond 
void,  even  against  a  bona  fide  vendor  ignor- 
ant of  all  the  circumstances;  The  Prince  of 
Saxe  Cobourg,  3  Hngg.  387. 

2.  There  must  be  an  inability  on  the  part 
of  the  master  to  procure  funds  of  the  owner, 
or  funds  on  the  personal  credit  of  the  owner, 
at  the  port  of  distress.  It  seems  to  be  an 
open  question,  whether  the  bond  would  be 
valid  if  the  master  has  the  requisite  funds, 
or  could  procure  them  on  his  own  credit ; 
Abb.  on  Ship.  200.  A  bottomry  bond 
by  a  master  is  not  valid,  unless  it  has  been 
given  to  enable  the  vessel  to  leave  a  port 
where  she  is  detained,  either  for  neces- 
sary repairs,  or  for  claims  upon  her,  the 
master  having  there  no  funds  nor  credit,  nor 
means  of  getting  money  ;  Gibbst^.  The  Texas, 
Crabbe,  236. 

But  the  necessity  of  the  supplies  and  re- 
pairs being  once  made  out,  it  is  incumbent 
upon  the  owners,  who  assert  that  they  could 
have  been  obtained  upon  their  personal  credit, 
to  establish  that  fact  by  competent  proofs, 
unless  it  is  apparent  from  the  circumstances 
of  the  case.  It  is  no  objection  that  the  owner 
had  funds  in  the  hands  of  his  consignees,  at 
the  same  port,  provided  the  master  applied 
for  and  could    not  obtain  them.     The  non- 


OF   INSURANCE. 


259 


existence  of  funds,  and  the  inability  to  get 
at  them,  must  be  deemed  precisely  equal  pre- 
dicaments of  distress.  Nor  is  it  an  objection, 
that  the  supplies  and  repairs  were  in  the  first 
instance,  made  upon  the  master's  credit. 
The  lender  may  well  trust  to  the  credit  of  the 
master,  as  auxiliary  to  the  lien,  which  the 
foreign  law  would  give  on  the  ship,  or  the 
general  responsibility  of  the  owners.  And 
the  fact  that  the  master  ordered  the  supplies 
and  repairs  before  the  bottomry  bond  was 
given,  can  have  no  legal  effect  to  defeat  that 
security,  if  they  were  so  ordered  by  the  master, 
upon  the  faith,  and  with  the  intention,  that  a 
bottomry  bond  should  ultimately  be  given,  to 
secure  the  payment  of  them  ;  The  Virgin,  8 
Peters  R.  538.  A  bottomry  bond  may  be 
valid,  though  the  money  was  not  advanced 
in  one  sum,  nor  at  the  same  time  the  bond  was 
given.  If  advanced  before  the  bond  was 
made,  or  in  separate  sums,  it  is  only  necessary 
that  it  should  have  been  advanced  on  the 
faith  and  understanding,  that  the  bottomry 
security  was  to  be  given ;  La  Ysabel,  1  Dod- 
son  R.  273  ;  The  Virgin,  8  Peters  R.  538. 
Such  a  bond,  to  be  valid,  should  be  given  for 
repairs  or  outfits  of  a  vessel,  and  not  for  a 
pre-existing  debt ;  and  should  appear  to  be 
risked  on  the  vessel,  and  not  on  the  personal 
liability  of  the  owner  ;  Greely  v.  Smith,  3 
Wood  &  Minot,  236.  But  small  advances, 
originally  made  without  any  express  stipula- 
tion for  a  bond,  but  followed  by  a  bond  of 
bottomry,  may  be  included  in  the  bond;  The 
Trident,  1  AV.  Rob.  34.  And  though  a  loan 
upon  personal  credit  cannot  be  changed  into 
a  loan  upon  bottomry,  it  is  a  totally  different 
thing  from  this,  to  take  a  bottomry  bond  for 
a  loan,  where  the  money  was  at  first  advanced 
on  the  security  of  a  lien,  or  the  right  of  lien 
on  the  ship  ;  The  Ship  Vibelia,  1  Robinson, 
Jr.,  R.  p.  1.  And  in  ascertaining  the  origi- 
nal character  of  the  loan,  where  the  question 


is  personal  credit  or  not,  the  law  of  the  place 
where  the  advances  have  been  made  may  be 
properly  invoked,  if  that  law  gives  a  lien  for 
the  advances,  because  it  renders  the  contem- 
plation of  bottomry  security  more  probable 
than  it  would  otherwise  be,  by  furnishing  a 
presumption  against  the  contracting  of  the 
loan,  on  mere  personal  credit ;  La  Ysabel,  1 
Dodson  R.  273  ;  The  Alexander,  1  Dodson  R 
280  ;   The  Virgin,  8  Peters  R.  538. 

The  lender  is  always  expected  to  prove,  by 
other  evidence  than  the  bond,  that  the  money 
was  lent,  and  that  the  repairs  were  made,  and 
the  materials  furnished  to  the  amount 
claimed,  and  that  they  were  necessary  to 
enable  the  vessel  to  perform  her  voyage,  or 
for  her  safety  ;  Crawford  v.  The  William 
Penn,  3  Wash.  C.  C.  R.  354  ;  but  it  is  not 
necessary  further  to  prove,  that  the  money 
lent  was  actually  employed  in  repairing  or  re- 
fitting the  vessel ;  Cunard  v.  The  Atlantic 
Ins.  Co.,  1  Peters  R.  436  ;  The  Jane,  1  Dods. 
R.  461. 

AVhere  once  the  transaction  is  shown  to 
have  been  clearly  and  indisputably  of  a  bot- 
tomry character,  that  is,  where  the  distress 
is  admitted  or  established,  the  want  of  per- 
sonal credit  is  beyond  question,  and  the  bond 
in  all  essentials  is  correct ;  the  strong  pre- 
sumption of  the  law,  under  such  circum- 
stances, is  in  favor  of  its  validity  ;  and  this 
is  not  to  be  impugned  without  clear  and  con- 
clusive evidence  of  fraud,  or  unless  it  shall 
be  proved  beyond  all  doubt,  that  although 
the  contract  is  in  form  a  bottomry  transac- 
tion, the  money  was  in  fact  advanced  on  dif- 
ferent considerations  ;  The  Vibelia,  1  Robin- 
son, Jr.,  R.  1. 

And  2)n  ma  facte,  and  until  the  contrary  is 
shown,  the  master  is  presumed  to  have  acted 
with  good  faith,  upright  intentions,  and  rea- 
sonal>le  diligence  ;  The  Fortitude,  3  Sumner 
R.  228. 


260  OF   ClIOSES   IN   ACTION. 


[*165]  *CHAPTEE   VII. 

OF  ARBITRATION.' 

Instead  of  tlie  ultimate  remedy  of  an  action  at  law  or  suit  in 
equity,  recourse  is  sometimes  had  for  the  settlement  of  disputes 

1  The  laws  of  all  the  States,  contain  pro-  umpire  subsequently,  although  it  also  allows 

visions  on  the  subject  of  arbitration  and  ref-  the  parties,  at  discretion,  to  fix  upon  their 

erenee  ;  and  in  almost  all  of  them,  any  per-  umpire  at  the  time  the  other  arbitrators  are 

sonal   controversy,  whether  litigated  or  not,  appointed. 

may  be  referred  under  a  rule  of  court  ;  this  The  Pennsylvania  systems  of  arbitration 
is  the  case  in  Alabama,  Florida,  Georgia,  are  peculiar,  being  in  number  no  less  than 
Kentucky,  Louisiana,  California,  Michigan,  •  six,  five  of  which  are  by  agreement  of  the 
Missisippi,  New  Hampshire,  New  Jersey,  parties,  and  the  sixth  at  the  pleasure  of  either, 
Ohio,  Tennessee,  Vermont,  Virginia,  and  and  commonly  called  the  compulsory  rule  of 
Pennsylvania.  In  Maine,  Massachusetts,  and  arbitration.  In  the  case  of  Williams  t".  Craig, 
New  York,  any  personal  controversy  may  be  1  Dal.  R.  313,  Chief  Justice  McKean  gives 
made  the  subject  of  arbitration.  The  stat-  a  description  of  four  of  these  kinds  of  refer- 
utes  of  Delaware,  Iowa,  and  Texas,  allow  a  ence  in  the  following  words:  "There  are 
reference  of  any  matter  in  litigation  ;  and  four  species  of  awards,  first,  those  made  by 
those  of  Arkansas,  authorize  a  reference,  by  mutual  consent,  in  pursuance  of  arbitration- 
agreement  in  writing,  in  cases  where  no  suit  bonds  entered  into  out  of  court;  sexuiidly, 
is  pending.  In  general,  there  is  no  necessity  those  which  are  made  in  a  cause  depending 
for  the  choice  of  an  umpire,  as  the  statutes  in  a  court  of  law  or  equity,  upon  consent 
either  direct  the  arbitrators  to  be  of  an  of  the  parties  to  refer  the  matter  in  vari- 
uneven  number,  or  else  allow  them  to  be  ance  (which  are  awards  at  common  law)  ; 
so  chosen  ;  thus,  in  Florida,  Kentucky,  iklidly,  those  which  are  made  under  a  rule 
California,  Massachusett.-*,  Mississippi,  New  of  court,  by  virtue  of  the  statute  of  9  &  10 
Hamjjshire,  New  Jersey,  New  York,  Ohio.  Will.  3,  c.  15,  which  was  calculated  to  rem- 
and Vermont,  the  dispute  may  be  referred  to  edy  the  delay  and  circuity  of  action,  at- 
one or  more  persons  ;  if  one  only  should  be  tendant  upon  awards  made  merely  in  pur- 
chosen,  he  is  of  course  the  umpire,  but  it  is  suanee  of  arbitration-bonds,  without  the  in- 
customary  to  choose  an  uneven  number  at  tervention  of  a  controlling  power  to  compel 
first,  obviating  the  necessity  of  an  umpire,  the  acquiescence  of  the  parties.  These  are 
In  Arkansas  any  number  of  referees,  not  ex-  the  only  awards  in  use  at  this  day  in  England, 
ceeding  five,  may  be  chosen,  while  in  Dela-  but  the  legislature  of  Pennsylvania,  in  the 
ware  the  number  is  fixed  at  three.  The  laws  year  1705,  introduced  another  species  here, 
of  Texas  and  Louisiana,  regulating  arbitra-  which  a-re, fourthly,  those  awards,  or  reports, 
tions  and  awards,  pre.?eribe  the  manner  of  that  are  made  in  pursuance  of  the  act  of  As- 
choosing  an  umpire;  the  former  requiring,  sembly,  setting  forth,  that  'when  the  plain- 
that  where  one  is  chosen  it  shall  be  at  the  tiff  and  defendant  consent  to  a  rule  of  court, 
same  time  with  the  original  arbitrators  ;  and  for  referring  the  adjustment  of  their  accounts 
the  latter,  on  the  contrary,  giving  power  to  certain  persons,  mutually  chosen  by  them 
to  the  arbitrators    themselves  to  appoint  an  in  open  court,  the  award,  or  report,  of  such 


OF   ARBITRATION. 


261 


to  the  more  amicable  expedient  of  arbitration.     And  in  some 
transactions,  especially  in  articles  of  copartnership  between  tra- 


•  referees  being  made  according  to  the  submis- 
sion of  the  parties,  and  ajipioved  by  the  court, 
and  entered  upon  the  record,  or  roll,  shall 
hiive  the  same  effect,  and  be  as  available  in 
law,  as  a  verdict  by  twelve  men.'  1  State 
Ls.  48  ;  4  Ann.  c.  36  ;  act  of  1705  ;  1  Sm. 
Laws,  50." 

"  This  act  differs  essentially  from  the 
statute  of  Will.  .3,  in  many  respects,  but 
particularly,  that  to  render  a  report,  or 
award,  valid  and  effectual,  the  former  requires 
that  it  be  approved  by  the  court ;  but  no  such 
provision  is  made  by  the  latter,  and,  there- 
fore, awards  under  rules  of  court,  are  con- 
clusive in  England,  unless  some  corruption, 
or  other  misbehavior  in  the  arbitrators,  is 
proved.  The  courts  of  equity,  indeed,  have 
taken  a  wider  ground,  and  wherever  a  plain 
error  appears,  either  in  matter  of  fact  or  law, 
it  seems,  they  will  make  it  an  object  of  in- 
quiry ;  2  Vern.  705  ;  1  Vern.  157 ;  3  Atk.  494. 
From  some  expressions  in  the  authority,  we 
might  presume  that  the  error  must  be  appar- 
ent on  the  award;  but  as  the  chancellor,  at 
the  same  time,  speaks  generally,  that  it  must 
be  set  forth  in  the  bill  for  relief,  there  is,  at 
least,  great  room  to  doubt  upon  the  subject. 

"In  Pennsylvania,  however,  since  the 
revolution,  as  the  approbation  of  the  court  is 
made  a  necessary  ingredient  in  the  confirma- 
tion of  reports,  we  have  thought  it  our  duty 
from  time  to  time,  to  inquire  into  the  allega- 
tions against  them,  before  we  gave  them  our 
sanction.  But  in  doing  this  we  have  always 
confined  ourselves  to  two  points  ;  first,  whether 
there  is  an  evident  mistake  in  matter  oifact ; 
or,  secondly,  whether  the  referees  have  clearly 
erred  in  matter  of  law.  If  either  of  these  is 
satisfactorily  proved,  the  argument  is,  surely, 
as  strong  for  setting  a  report  aside,  a.s  where 
injustice  has  been  done  by  the  corruptions, 
or  other  nii.'-conduct  of  the  referees.'" 

The  fifth  species  of  award,  is  that  created 
by  the  act  of  the  21st  of  March,  ISOfi  (4  Sm. 
Ls.  320),  wherein  it  is  provided,  "That  it 
shall  be  lawful  for  any  person  or  persons,  de- 
sirous of  settling  any  dispute  or  controversy, 
by  theraselve.«,  their  agents,  or  attorneys,  to 
enter  into  an   agreement  in  writing,  to  refer 


such  dispute  or  controversy  to  certain  persons 
to  be  by  them  mutually  chosen,"  Ac.  By 
the  3d  section  of  the  Revised  Act  of  1836,  on 
the  subject  of  voluntary  arbitrations,  a  new 
modification  of  the  voluntary  system  is  intro- 
duced, it  being  enacted,  that  "It  shall  be 
lawful,  also,  for  the  parties  to  any  suit,  to 
consent,  as  aforesaid,  to  a  rule  of  court,  for 
referring  all  matters  of  fact  in  controversy 
in  such  suit,  to  referees,  as  aforesaid,  reserv- 
ing all  matters  of  Law  arising  thereupon,  for 
the  decision  of  the  court,  and  the  report  of 
such  referees,  setting  forth  the  facts  found  by 
them,  shall  have  the  same  effect  as  a  special 
verdict,  and  the  court  shall  and  may  pro- 
ceed thereupon,  in  like  manner  as  upon  a 
special  verdict,"  &c. 

The  last  species  of  award,  being  the  com- 
pulsory system,  authorizes  either  party  to 
enter  a  rule  of  reference,  and  regulate  the 
proceedings  on  arbitration  ;  the  provisions  of 
this  system  will  be  found  in  the  acts  of  20th 
March,  1810  (5  Sm.  Laws,  131)  ;  25th  of 
February,  1813  (6  Sm.  Laws,  28)  ;  2Sth  of 
March,  1820  (Pamp.  Ls.  172);  and  the  revised 
act  on  compulsory  arbitration,  of  the  16th  of 
June,  1836.  This  system  originated  from  the 
violent  opposition  at  one  time  felt  in  Penn- 
sylvania to  the  common  law  ;  it  is  alluded  to 
by  Mr.  Duponceau  in  his  Treatise  on  Juris- 
diction, page  102,  thus  :  "  In  Pennsylvania  it 
was  for  some  time  believed  that  the  legisla 
ture  would  abolish  the  common  law  altogether. 
Violent  pamphlets  were  published  to  insti- 
gate them  to  that  measure.  The  whole,  hovr- 
ever,  ended  in  a  law  for  determining  all  suits 
by  arbitrators  in  the  first  instance,  at  the 
will  of  either  party:"  A  recent  act  of  the 
legislature,  passed  May  1,  1861  (Pamp.  Ls. 
521),  has  repealed  the  act  of  1836  in  refer- 
ence to  compulsory  arbitration,  so  far  as  the 
same  relates  to  the  city  and  county  of  Phila- 
delphia, so  that  this  mode  of  settling  disputes 
and  controversies  cannot  now  be  there  re- 
sorted to. 

By  the  voluntary  system  of  arbitration,  in 
Pennsylvania,  any  person  or  persons  may  be 
chosen  as  arbitrators  by  the  parties ;  and  by 
the  compulsory  system,  the  number  of  arbi- 


262 


OF   CHOSES   IN   ACTION. 


ders,  it  is  usual  to  stipulate  tliat,  if  any  dispute  shall  arise,  it  shall 
be  referred  to  the  determination  of  two  indifferent  persons  as 


trators  is  to  be  either  three  or  five,  and  if 
they  cannot  ngree,  the  discretion  of  appoint- 
ing is  left  with  the  prothonotary  of  the  court ; 
but  the  parties  inny  agree  to  refer  the  dis- 
pute to  one  person  ;  and  the  act  of  1836, 
contains  precise  directions  as  to  the  practice 
of  appointing  arbitrators,  or  an  umpire. 

Ou  the  general  subject  of  statutory  arbitra- 
tion, and  the  practice  therein,  see  the  follow- 
ing cases;  Beverly  et  al.  v.  Stevens,  17  Ala. 
R.  701;  Gerrish  et  al.  v.  Ayres  et  al.,  3 
Scam.  R.  245  ;  Niles  v.  The  Board  of  Com- 
missioners of  the  Sinking  Fund,  8  Blackf.  R. 
158;  Anderson  f.  Farnham  et  al.,  .'54  Maine 
R.  161  ;  Dickey  v.  Sleeper,  13  Mass.  R.  244  ; 
Coflfin  V.  CotUe,  4  Pick.  R.  454 ;  Shearer  v. 
Mooers,  19  Pick.  R.  308  ;  Scudder  v.  John- 
son, 5  Mo.  R.  561;  Bowes  v.  French,  11 
Maine  R.  182;  Craig  v.  Craig,  4  Halst.  R. 
198;  Ferris  v.  Mann,  2  Zabr.  R.  161  ;  Free- 
born V.  Denman,  3  Halst.  R.  116;  Ex  parte 
Vasques,  5  Cow.  R.  29  ;  Dodge  v.  Water- 
bury  et  al.,  8  Cow.  R.  136;  AVells  v.  Dain, 
15  Wend.  R.  99  ;  Waugh  v.  Mitchell,  1  Dev. 
&  Bat.  Eq  R.  521  ;  Large  v.  Passmore  et  al., 
5  Serg.  &  Raw.  R.  51  ;  Todd  v.  Rough,  10 
Id.  18  ;  Horton  v.  Stanley,  1  Miles's  R.  418  ; 
Pennington  v.  Rowman,  10  Wat.  R.  283  ; 
Fordi>.  Keen,  13  Pa.  St.  R.  179;  Gibson  v. 
Broadfoot,  3  Desauss.  R.  584  ;  Parnell  v. 
King  et  al..  Rice's  R.  376  ;  Carsley  v.  Lind- 
say, 14  Cal.  R.  390  ;  Low  v.  Nolte,  15  111. 
R.  368. 

But  the  fact  that  the  statutes  of  a  State 
have  provided  a  method  of  arbitration  and 
reference,  does  not  abrogate  the  common  law 
system,  which  will  still  remain  in  existence 
unless  expressly  abolished  ;  Martin  v.  Chap- 
man, 1  Ala.  R.  278;  Byrd  v.  Odeur,  9  Id.  756  ; 
Titus  V.  Scantling,  4  Blackf.  R.  90  ;  Tyler 
V.  Dyer,  13  Maine  R.  41 ;  Mooer's  Admr.  v. 
Allen,  35  Id.  276  ;  Camp  et  al.  v.  Root,  18 
Johns.  R.  22  :  Waine  v.  Elderkin,  1  Chand- 
ler's (Wis.)  R.  219;  Wells  v.  Lain,  16 
Wend.  R.  99  ;  Valentine  v.  Valentine  et  al., 
2  Barb.  Ch.  R.  430  ;  Gray  v.  Wilson,  4  Wat. 
R.  39  ;  Graham  et  al.  v.  Hamilton,  1  Bin.  R. 
461 ;  Graham  v.  Graham,  9  Pa.  St.  R.  254  ; 
S.  C.  12  Pa.   St.  R.   128 ;  Allen  v.   Chase,  3 


Wis.  R.  249  f  and  where  an  arbitration  is  * 
had  under  the  common  law,  an  umpire  may 
of  course  be  chosen,  if  a  necessity  for  one 
should  arise,  as  well  as  in  those  cases  where 
the  statutes  of  the  State  make  provision  for 
the  election  of  an  umpire,  and  he  will  be 
subject  to  the  regulations  of  the  common  law 
on  that  subject,  unless  the  laws  of  the  State 
provide  otherwise  ;  Ramsey  v.  Edwards,  17 
Conn.  R.  309  ;  Falconer  v.  Montgomery,  4 
Dal.  R.  232;  Passmore  v.  Pettit  et  al..  Id. 
271  ;  Crabtree  v.  Green,  8  Ga.  R.  8;  Keans 
V.  Rankin,  2  Bibb's  R.  88;  Tyler  v.  Webb, 
10  B.  Mon.  R.  123  ;  Knowlton  v.  Horner,  29 
Maine  R.  552  ;  Rigden  v.  Martin,  6  Har.  & 
Johns.  R.  403  ;  McKinstry  v.  Solomons,  2 
Johns.  R.  57  ;  S.  C.  13  Id.  27  ;  Van  Court- 
landt  et  al.  v.  Underbill  et  al.,  17  Id.  405  ; 
Butler  V.  The  Mayor,  Ac,  of  New  York,  1 
Hill's  (N.  Y.)  R.  489;  Boyer  v.  Aurand,  2 
Wat.  R.  74  ;  Graham  v.  Graham,  9  Pa.  St. 
R.  254,  S.  C.  12  Pa.  St.  R.  128  ;  Sharp  v. 
Lipsey,  2  Bail.  R.  113  ;  Pack  v.  Wakeley  et 
al.,  2  McCord's  R.  279  ;  Shields  v.  Penn, 
Overt.  R.  313  ;  Richards  «.  Brockenborough's 
Admr.,  1  Rand.  R.  449;  Rison  v.  Berry,  4 
Id.  275  ;  Bassett's  Admr.  v.  Cunningham's 
Admr.,  9  Gratt.  R.  684.  This  kind  of  sub- 
mission may  be  revoked  at  any  time  before 
the  award  is  made  ;  Martin  v.  Chapman,  1 
Ala.  R.  278 ;  Randal  v.  Chesapeake,  Ac, 
Canal  Co.,  1  Harring.  R.  235  ;  Peters's  Admr. 
V.  Craig,  6  Dana's  R.  307  ;  Allen  v.  Watson, 
16  Johns.  R.  205  ;  Frets  v.  Frets,  1  Cow.  R. 
335  ;  Erie  v.  Tracy,  2  Grant's  Cas.  20  ;  Da- 
vis V.  Maxwell,  27  Ga.  R.  368 ;  and  it  is 
ipso  facto  revoked  by  the  death  of  either 
party  ;  Mooer's  Admr.  v.  Allen,  35  Maine  R. 
276  ;  Ferris  v.  Mann,  2  Zabr.  R.  161  ;  Free- 
born V.  Denman,  3  Halst.  R.  116;  Frets  f. 
Frets,  1  Cow.  R.  335  ;  Tyson  v.  Robinson,  3 
Ired.  R.  333 ;  unless  there  should  be  an 
agreement  to  the  contrary  ;  Bailey  v.  Stew- 
art, 3  Wat.  &  Serg.  R.  560  ;  but  where  the 
reference  is  made  a  rule  of  court,  the  death 
of  one  of  the  parties  will  not  revoke  it,  if  the 
cause  of  action  survives  ;  Bacon  v.  Crandon, 
15  Pick.  R.  79  ;  Tyson  v.  Robinson,  3  Ired. 
R.  333  ;   but  see,  contrary  to  the  last,  Power 


OF   ARBITRATION. 


263 


arbitrators,  or  of  their  umpire,  who  is  usually  and  very  properly 
required  to  be  chosen  by  the  arbitrators  before  they  proceed  to 
take  the  subject  in  question  into  consideration. («)  And  it  is 
agreed  that  the  award  in  writing  of  the  arbitrators,  or  of  their 
umpire  in  case  of  their  disagreement,  shall  be  binding  and  con- 
clusive on  all  parties. 

As  the  courts  of  law  and  equity  have  full  jurisdiction  on  all 
questions  arising  out  of  agreements  of  any  kind,  it  follows  that 
they  retain  a  jurisdiction  over  matters  which  the  parties  them- 
selves have  agreed  should  be  referred  to  arbitration.(6)     Notwith- 

(</)   See  Bates  v.  Cooke,  9  Barn.  &  Cress.  407,  408,  E.  C.  L.  R.  vol.  17. 
(/;)   Wellington  v.  Mackintosh,  2  Atk.  569. 


V.  Power,  7  Wat.  R.  205,  which  decides  that 
a  submission  even  by  a  rule  of  court,  is,  like 
any  other  naked  authority,  countermandable. 
An  award,  however,  which  has  been  accepted 
or  carried  into  effect,  bars  all  further  action  ; 
Kendall  v.  Stokes  et  al.,  3  How.  (U.  S.)  R. 
87  ;  United  States  v.  Ames,  1  Wood.  &  Min. 
R.  76  ;  Martin  v.  Chapman,  1  Ala.  R.  278; 
Gerrish  et  al.  v.  Ayres  et  al.,  3  Scam.  R.  245  ; 
Coleman  v.  Wade,  2  Seld.  R.  44  ;  Patton's 
Admr.  v.  Baird,  7  Ired.  Eq.  R.  255. 

Awards  must  conform  to  the  submission  or 
agreement  by  which  they  are  referred  ;  Daniel 
V.  Daniel's  Admr.,  6  Dana's  R.  99 ;  Anderson 
V.  Farnham  et  al.,  34  Maine  R.  161  ;  Reeves 
V.  Goff,  Penning.  Pi.  105  :  Young  v.  Young, 
2  Halst.  Ch.  R.  450  ;  Welty  v.  Lentmyer,  4 
Wat.  R.  75;  Coleman  et  al.  v.  Lukens,  4  Wh. 
R.  347  ;  Okinson  v.  Flickinger,  1  Wat.  & 
Serg.  R.  257  ;  Sharp  v.  Lipsey,  2  Bail.  R 
113;  Speer  v.  Bidwell,  44  Pa.  St.  R.  23 
Burchell  v.  Marsh,  17  How.  (U.  S.)  R.  344 
and,  where  an  award  is  partly  good  and 
partly  bad,  it  will  be  valid  so  far  as  it  is 
good,  and  void  as  to  the  rest,  except  where 
the  good  and  bad  are  so  intermingled  that 
the  one  cannot  be  separated  from  the  other, 
in  which  case  the  whole  award  will  be  bad  ; 
Reynolds  v.  Reynolds,  15  Ala.  R.  398  ;  Gal- 
way's  Heirs  V.  Webb,  Hardin'sR.  318  ;  Dickey 
V.  Sleeper,  13  Mass.  R.  244;  Walker  v. 
Walker,  28  Geo.  R.  140  ;  and  awards  must 
be  certain;  Etnier  v.  Shope,  43  Pa.  St.  R. 
110  ;  Stanley  v.  Southwood,  45  Id.  189  ;  Pet- 
tibone  v.  Perkins,  6  Wis.  R.  610  ;  and  final  ; 


Bayne  v.  Morris,  1  Wallace  (U.  S.)  R.  97  ; 
McCracken  v.  Clarke,  31  Pa.  St.  R.  498; 
Owen  V.  Boerum,  23  Barb.  R.  187;  Smith  v. 
Potter,  27  Vermont  R.  304  ;  Carter  v.  Cal- 
vert, 3  Md.  Ch.  Dec.  199  ;  as  to  what  is  suffi- 
cient to  set  an  award  aside,  see  further. 
State,  to  the  use  of,  &c.,  v.  Williams,  9  Gill's 
R.  172;  Bean  v.  Earnam  et  al.,  6  Pick.  R. 
269  ;  Newman  v.  Labeaume,  9  Missi.  R.  30  ; 
Eaton  V.  Eaton,  8  Ired.  Eq.  R.  102;  Conger 
V.  James,  2  Swan's  R.  213  ;  Webber  v,  Ives, 
1  Tyler's  R.  441;  Ligon  v.  Ford,  5  Munf.  R. 
10  ;   Taber  v.  Jenny,  Sprague's  R.  315. 

In  the  State  of  New  York,  upon  a  motion 
to  refer  a  cause  then  pending,  the  reference 
may  be  opposed  on  the  ground  that  a  mate- 
rial point  of  law  will  arise  ;  Lusher  v.  Walton, 

1  Gaines's  R.  149  ;  Low  v.  Ilallett,  3  Id.  82  ; 
Adams  v.  Eayles,  2  Johns.  R.  374;  Salisbury 
V.  Scott,  6  Id.  329  ;  De  Hart  v.  Covenhoven, 

2  Johns.  Cas.  402  ;  Shaw  v.  Ayrs,  4  Cow.  R. 
52;  Anon.,  5  Id.  423. 

As  to  the  time  within  which  an  award  is  to 
be  made,  see  Minton  v.  Moore,  4  Blackf.  R. 
315  ;  Shaw  v.  Pearce,  4  Bin.  R.  485  ;  Abbot 
V.  Pinchin,  1  Dal.  R.  349  ;  White  v.  Puryean, 
10  Yerg.  R.'  441  ;  Willard  v.  Bickford,  39 
N.  H.  R.  536. 

An  agreement  to  arbitrate  does  not  divest 
courts  of  their  jurisdiction  ;  Allegre  v.  Insur- 
ance Co.,  6  Har.  &  Johns.  R.  408  ;  Haggart 
V.  Morgan,  1  Seld.  R.  422  ;  but  see,  to  the 
contrary,  Monongahela  Navigation  Co.  v. 
Fenlon,  4  Wat.  &  Serg.  R.  205  ;  Leonard  v. 
House,  15  Ga.  R.  473. 


264  OF   CHOSES   IN    ACTION. 

standing,  tlierefore,  an  agreement  to  refer  disputes  to  arbitration, 
either  party  may  bring  the  matter  into  court.(c)  But  the  Com- 
mon Law  Procedure  Act,  1854,  now  provides,  that,  whenever  the 
parties  to  any  deed  or  instrument  in  writing  to  be  thereafter  exe- 
cuted shall  agree  to  refer  their  differences  to  arbitration,  and  one 
r*i  an  ^^  such  parties  *8hall  nevertheless  commence  any  action 
'-  -'at  law  or  suit  in  equity  against  the  others  in  respect  of 
the  matters  so  agreed  to  be  referred,  the  court  may  stay  the  pro- 
ceedings on  such  terms  as  it  may  think  fit,  on  being  satisfied  that 
no  sufficient  reason  exists  wh}^  such  matters  cannot  be  or  ought 
not  to  be  referred  to  arbitration,  and  that  the  defendant  was  at 
the  time  of  the  bringing  of  such  action  or  suit  and  still  is  ready  . 
and  willing  to  concur  in  all  acts  necessary  for  causing  such  mat- 
ters to  be  decided  by  arbitration. ((/)  And  a  contract  may  be  so 
worded  as  to  amount  to  merely  an  agreement  to  pay  so  much  as 
an  arbitrator  may  award,  in  which  case  there  can  be  no  right  to 
sue  until  the  award  has  been  made.(e) 

The  reference  of  disputes  to  arbitration  appears  to  have  been 
early  adopted  by  the  courts  of  law,  with  the  consent  of  the  parties 
to  an  action,  in  cases  where  the  matter  in  dispute  could  be  more 
conveniently  settled  in  this  mode.  A  verdict  was  taken  for  the 
plaintiff  by  consent,  subject  to  the  award  of  an  arbitrator  agreed 
upon  by  the  parties,  and  the  reference  was  made  a  rule  of  court. 
This  plan  is  still  continually  adopted.  The  arbitrators  and  the 
parties  to  the  reference  by  this  means  become  subject  to  the  juris- 
diction of  the  court,  which  has  power  to  set  aside  any  award  which 
may  appear  to  have  been  given  unjustly  or  through  mistake  of 
the  law;  or  if  the  award  be  valid,  its  performance  maybe  en- 
forced under  the  penaltv^  of  imprisonment  for  contempt  of  court. 
And  by  the  Common  Law  Procedure  Act,  1854,  the  court  has 
power,  upon  the  application  of  either  party,  to  order  any  matter 
in  dispute,  which  consists  wholly  or  in  part  of  matters  of  mere 
account,  to  be  referred  to  arbitration,  upon  such  terms  as  to  costs 

(c)  Waters  v.  Taylor,  15  Ves.  ]0,  18:  Mexborough  v.  Bower,  7  Beav.  127,  132;  Horton 
V.  Sayers,  4  H.  &  N.  643. 

{d)  Stat.  17  &  18  Vict.  c.  125,  s.  11 ;  Hirsch  v.  Im  Thurn,  4  C.  B.  N.  S.  569,  E.  C.  L.  R. 
vol.  93.     See  Mason  v.  Haddan,  6  C.  B.  N.  S.  526,  E.  C.  L.  R.  vol.  95. 

(e)  Scott  V.  Avery,  5  House  of  Lords  Cases,  811  j  Scott  v.  Corporation  of  Liverpool,  3  De 
Gex  &  Jones,  334 


OF    ARBITRATION.  '  265 

aud  ^otherwise  as  the  court  may  think  reasonable.(/)  In 
order  to  extend  the  benefits  of  this  mode  ot  submission  ^  -* 
to  arbitration  to  all  cases  of  controversies  between  merchants  and 
traders  or  others  concerning  matters  of  account  or  trade  or  other 
matters,  an  act  of  Parliament  was  passed  in  the  reign  of  William 
the  Third,  intituled  "An  Act  for  determining  Difierences  by  Ar- 
bitration. "(^^)  This  act  empowers  all  merchants  and  traders  and 
others  desiring  to  end  by  arbitration  any  controversy,  for  which 
there  is  no  other  remedy  but  by  personal  action  or  suit  in  equity, 
to  agree  that  their  submission  of  their  suit  to  the  award  or  um- 
pirage of  any  person  or  persons  shall  be  made  a  rule  of  any  of 
her  majesty's  courts  of  record  which  the  parties  shall  choose. 
And  it  provides,  that,  in  case  of  disobedience  to  the  arbitration 
or  umpirage  to  be  made  pursuant  to  such  submission,  the  party 
neglecting  or  refusing  to  perform  and  execute  the  same,  or  any 
part  thereof,  shall  be  subject  to  all  the  penalties  of  contemning  a 
rule  of  court  when  he  is  a  suitor  or  defendant  in  such  court. 
And  the  process  to  be  issued  accordingly  shall  not  be  stopped  or 
delayed  in  its  execution  by  any  order,  rule,  command,  or  process 
of  any  other  court,  either  of  law  or  equity,  unless  it  shall  be 
made  to  appear  on  oath  to  such  court  that  the  arbitrators  or  um- 
pire misbehave  themselves,  aud  that  such  award,  arbitration,  or 
umpirage  was  procured  by  corruption  or  other  undue  means.  It 
is  also  further  provided,(A)  that  any  arbitration  or  umpirage  pro- 
cured by  corruption  or  undue  means  shall  be  judged  void,  and  be 
set  aside  by  any  court  of  law  or  equity,  so  as  complaint  of  such 
corruption  or  undue  practice  be  made  in  the  court  where  the  rule 
is  made  for  submission  to  such  arbitration  or  umpirage  before 
the  last  day  of  the  next  term  after  such  arbitration  or  umpirage 
is  made  and  *published  to  the  parties.  The  Court  of  ^ 
Chancery  is  a  court  of  record  within  the  meaning  of  this  '-  ^ 
act.(i)  And  it  is  now  provided,  that  every  agreement  or  submis- 
sion to  arl)itration  by  consent  may  be  made  a  rule  of  any  one  of 
the  superior  courts  of  law  or  equity  at  Westminster,  on  the  ap- 
plication of  any  party  thereto,  unless  such  agreement  or  submis- 
sion contain  words  purporting  that  the  parties  intend  that  it 
should  not  be  made  a  rule  of  court ;  but  where  it  is  provided  that 

(/)  Stat.  17  &  18  Vict.  c.  12.0,  ss.  3,  6,  7.  (k)  Sect.  2. 

{g)  Stat.  9  &  10  Will.  Ill,  c.  15.  (i)  Heming  v.  Swinnerton,  2  Phil.  79. 


266  OF   CHOSES   IN    ACTION. 

it  shall  be  made  a  rule  of  one  of  such  courts  in  particular,  it  may 
be  made  a  rule  of  that  court  only.(j) 

Previousl}^  to  a  recent  statute  either  party  might  have  revoked 
his  submission,  and  thus  determined  the  authority  of  the  arbitra- 
tors; and  this  may  still  be  done,  if  the  submission  relate  to 
criminal  matters,  which  are  not  within  the  statute. (/.:)  But  it  is 
enacted, (/)  that  the  power  and  authority  of  any  arbitrator  or  um- 
pire, appointed  by  or  in  pursuance  of  any  rule  of  court  or  judge's 
order  or  order  of  nisi  prius  in  any  action,  or  by  or  in  pursuance 
of  any  submission  to  reference  containing  an  agreement  that  such 
submission  shall  be  made  a  rule  of  any  of  her  majesty's  courts  of 
record,  shall  not  be  revocable  by  any  party  to  such  reference  with- 
out the  leave  of  the  court  by  which  such  rule  or  order  shall  be  made, 
or  which  shall  be  mentioned  in  such  submission,  or  by  leave  of  a 
judge. (?/i)  And  the  arbitrator  or  umpire  is  empowered  and  re- 
quired to  proceed  with  the  reference  notwithstanding  any  such 
pevocation,  and  to  make  such  award  although  the  person  making 
such  revocation  shall  not  afterwards  attend  the  reference.  The 
court,  or  any  *judge,  is  also  empowered  under  any  such 
'-  "-^  reference,  by  rule  or  order,  to  command  the  attendance 
and  examination  of  witnesses,  or  the  production  of  any  docu- 
ment, (t?)  And  by  the  act  to  amend  the  law  of  evidence  it  is  now 
provided,  that  every  arbitrator  or  other  person,  having  by  law  or 
by  consent  of  parties  authority  to  hear,  receive,  and  examine  evi- 
dence, may  administer  an  oath  to  all  such  witnesses  as  are  legally 
called  before  them  respeetively.(o) 

The  Common  Law  Procedure  Act,  1854,  now  provides,  that  if 
reference  is  authorized  to  be  made  to  a  single  arbitrator,  and  all 
the  parties  do  not  after  ditierences  have  arisen  concur  in  the  ap- 
pointment of  an  arbitrator ;  or  if  any  appointed  arbitrator  refuse 
or  become  incapable  to  act,  or  die,  and  the  terms  of  the  document 
authorizing  the  reference  do  not  show  that  it  was  intended  that 
such  vacancy  should  not  be  supplied,  and  the  parties  do  not  con- 
ey) Stat.  17  &  18  Vict.  c.  125,  s.  17. 

(k)  2  Wms.  Saund.  133  e,  n.  {d)  ;  Rex  v.  Bardell,  5  Ad.  k.  Ell  619,  E.  C.  L.  R.  vol.  31  ; 
S.  C.  1  Nev.  &  P.  74,  E.  C.  L.  R.  vol.  36. 

(/)   Stat.  3  &  4  Will.  IV,  c.  42,  a.  39. 

(m)  See  Scott  v.  Van  Sandau,  1  Q.  B.  102.         (o)   Stat.  14  &  15  Vict.  c.  99,  s.  16. 

(71)  Stat.  3  &  4  Will.  IV,  c.  42,  s.  40. 


OF   ARBITRATION.  ^  267 

cur  in  appointing  a  new  one ;  then  any  party  may  serve  the  re- 
maining parties  witli  a  written  notice  to  appoint  an  arbitrator; 
and  if  within  seven  clear  days  after  such  notice  shall  have  been 
served  no  arbitrator  be  appointed,  it  shall  be  lawful  for  any  judge 
of  any  of  the  superior  courts  of  law  or  equity  at  Westminster, 
upon  summons  to  be  taken  out  by  the  party  having  served  such 
notice  to  appoint  an  arbitrator,  who  shall  have  the  same  power 
to  act  in  the  reference  and  to  make  an  award  as  if  he  had  been 
appointed  by  consent  of  all  parties.(2:') 

The  authority  of  arbitrators  is  liable  to  be  determined  not  only 
by  a  revocation  of  the  submission,  but  also  by  the  death  of  either 
of  the  parties  previously  to  the  *making  of  the  award. (g)  r^-,^/x-. 
In  order  to  obviate  this  inconvenience,  it  is  now  usual  to  -" 

insert  in  the  order  or  rule  of  court,  by  which  reference  is  made 
to  arbitration,  a  provision  that  the  death  of  either  of  the  parties 
shall  not  operate  as  a  revocation  of  the  authority  of  the  arbitrators, 
but  that  the  award  shall  be  delivered  to  the  executors  or  admin- 
istrators of  the  parties,  or  either  of  them,  in  case  of  their  or  his 
decease.(r)  And  the  same  stipulation  may  be  effectually  made 
in  a  submission  to  arbitration  by  private  agreement. (5)  The 
bankruptcy  of  either  party  is  not  a  determination  of  a  submission 
to  arbitration. (/) 

When  the  reference  is  made  to  two  arbitrators,  one  appointed 
by  each  party,  it  is  now  provided, (it)  that  either  party  may,  in 
case  of  the  death,  refusal  to  act,  or  incapacity  of  any  arbitrator,  ap- 
pointed by  him,  substitute  a  new  arbitrator,  unless  the  document 
authorizing  the  reference  show  that  it  was  intended  that  a  vacancy 
should  not  be  supplied.  And  if  on  such  a  reference  one  party 
fail  to  appoint  an  arbitrator,  either  originally  or  by  way  of  substi- 
tution as  aforesaid,  for  seven  clear  days  after  the  other  party  shall 
have  appointed  an  arbitrator,  and  shall  have  served  the  party  so 

(p)  Stat.  17  &  18  Viet.  c.  125,  s.  12. 

(q)  Cooper  V.  Johnson,  2  Barn,  k  Aid.  .394;  Brooke  v.  Mitchell,  6  Mee.  &  Wels.  473. 

(r)  Tyler  v.  Jones,  .3  Barn.  &  Cress.  144,  E.  C.  L.  R.  vol.  10;  Prior  v.  Hembrow,  8  Mee. 
k  Wels.  873  ;  2  Wms.  Saund.  133  d,  n.  (d) . 

{s)  Macdougall  v.  Robertson,  2  You.  &  Jerv.  11 ;  S.  0.  4  Bing.  435,  E.  C.  L.  R.  vol.  13  , 
1  Moo.  k  P.  147. 

(t)  Hemsworth  v.  Bryan,  1  C.  B.  131,  E.  C.  L.  R.  vol.  50. 

{u)  Stat.  17  k  18  Vict.  c.  125,  s.  13. 


268  OF   CHOSES   IN   ACTION. 

failing  to  appoint  with  notice  in  writing  to  make  the  appoint- 
ment, the  party  who  has  appointed  an  arbitrator  may  appoint  such 
arbitrator  to  act  as  sole  arbitrator  in  the  reference ;  and  an  award 
made  V)y  him  shall  be  binding  on  both  parties  as  if  the  appoint- 
ment had  been  by  consent ;  provided,  however,  that  the  court  or 
a  judge  may  revoke  such  appointment  on  such  terms  as  shall 
seem  just. 

^  ^^^^  *AYhcn  no  time  is  limited  for  the  making  of  the  award, 
r*1711  .     .  ... 

"-         -"it  must  be  made  within  a  reasonable  time;(.r)  but  if  a  given 

time  be  limited,  the  award  must  be  made  within  that  time,  unless 
the  time  for  maldng  it  be  enlarged.(?/)  And  if  the  award  is 
required  to  be  made  and  ready  to  be  delivered  to  the  parties  by 
a  certain  day,  it  will  be  considered  as  ready  to  be  delivered  if  it 
be  made,(z)  unless  the  arbitrators  should  fail  to  deliver  it  to  either 
of  the  parties  on  request  made  for  that  purpose  on  the  last  day.(a) 
The  submission  to  arbitration  frequently  contains  a  power  for  the 
arbitrators  or  umpire  to  enlarge  the  time  for  making  the  award; 
and  in  this  case  the  time  may  be  enlarged  from  time  to  time(6) 
by  such  arbitrators  or  umpire,(e)  provided  the  enlargement  be 
made  on  or  before  the  expiration  of  the  time  originally  limited 
for  making  the  award.(c?)  And  if  the  submission  be  made  a  rule 
of  court,  then,  whether  the  arbitrators  or  umpire  have  power  to 
enlarge  the  time  or  not,(e)  the  court,  or  a  judge  thereof,  has 
power  to  enlarge  the  time.(/)  And  should  no  enlargement  be 
formally  made,  yet  the  parties  may,  by  continuing  their  attend- 
ance on  the  reference,  or  by  recognizing  the  proceedings  under 
it,  virtually  empower  the  arbitrators  or  umpire  to  make  a  valid 
award  subsequently  to  the  time  originally  limited. (_9)  And  the 
Common  Law  Procedure  Act,  1854,  now  provides,  that  the  arbi- 
trator acting  under  any  such  document  or  compulsory  order  of 
reference,  as  mentioned  in  the  act,  shall  make  his  award  under 

(2;)  Macdougall  v.  Robertson,  nbi  supra.  {z)  Bradsey  v.  Clyston,  Cro.  Car.  541. 

{y)   1  Wms.  Saund.  327  a,  n    (3).  (a)  Brooke  v.  Mitchell,  6  Mee.  &  Wels.  473. 

{b)   Payne  v.  Deakle,  1  Taunt.  509  ,;   Barrett  v.  Parry,  4  Taunt.  658. 

(c)  See  Dimsdale  v.  Robertson,  2  Jones  &  Lat.  58. 

{d)  See  Reid  v.  Fryatt,  1  M.  &  Sel.  1 ;  Mason  v.  Wallis,  10  B.  &  Cress,  107,  E.  C.  L.  R. 
vol.  21. 

(e)  Parbery  v.  Newnbam,  7  Mee.  &  Wels.  378;  Leslie  v.  Richardson,  6  C.  B.  378,  E.  C. 
L.  R.  vol.  60. 

(/)  Stat.  3  i  4  Will.  IV,  c.  42,  s.  39.  {g)  Rex  v.  Hill,  7  Price,  636. 


OF    ARBITRATION.  269 

his  hand,  and  (*unless  such  document  or  order  respec-  .-^-.^o-i 
tively  shall  contain  a  difterent  limit  of  time)  within  three  •-  -' 
months  after  he  shall  have  been  appointed  and  shall  have  entered 
on  the  reference,  or  shall  have  been  called  upon  to  act  by  a  notice 
in  writing  from  any  party;  but  the  parties  may,  by  consent  in  writ- 
ing, enlarge  the  term  for  making  the  award.  And  the  superior 
court  of  which  such  submission,  document,  or  order  is  or  may  be 
made  a  rule  or  order,  or  any  judge  thereof,  may  for  good  cause 
truly  stated  in  the  rule  or  order  for  enlargement  from  time  to 
time  enlarge  the  term  for  making  the  award;  and  if  no  period 
be  stated  for  the  enlargement  in  such  consent  or  order  for  en- 
largement, it  shall  be  deemed  to  be  an  enlargement  for  one 
month. (A)  The  word  "mouth"  in  an  act  of  Parliament  now 
means  a  calendar  month. (i') 

In  proceeding  in  the  business  of  the  arbitration,  the  arbitrators 
are  bound  to  require  the  attendance  of  the  parties,  for  which 
purpose  notice  of  the  meetings  of  the  arbitrators  should  be  given 
to  them.(j)  But  if  either  party  neglect  to  attend  either  in  person 
or  by  attorney,  after  due  notice,  the  arbitrators  may  proceed 
without  him.(/v)  In  taking  the  evidence  the  arbitrators  are  at 
liberty  to  proceed  in  any  way  they  please,  if  the  parties  have  due 
notice  of  their  proceedings,  and  do  not  object  before  the  award 
is  made.(^  But  each  must  use  his  own  judgment  •,{m)  and  iu 
order  to  obviate  any  objection,  they  ought  to  proceed  in  the  ad- 
mission of  evidence  according  to  the  ordinary  rules  of  law.(/i) 
The  award  should  be  signed  by  the  arbitrators  in  each  other's 
presence,(o)  and  when  made  it  must  be  both  certain  *and  ^  .. 
final.  Thus  if  the  award  be  that  one  party  enter  into  a  •- 
bond  with  the  other  for  his  quiet  enjoyment  of  certain  lands,  this 
award  is  void  for  uncertainty ;  for  it  does  not  appear  in  what  sum 
the  bond  should  be.(^9)     With  regard  to  certainty,  however,  the 

(h)  Stat.  17  &  18  Vict.  c.  125,  s.  15. 

(i)  Stat.  1.3  &  14  Vict.  c.  21,  s.  4.  (j)   Anon.  1  Salk.TI. 

(y(-)  Harcourt  v.  Ramsbottom,  1  Jac.  &,  Walk.  512  ;  Scott  v.  Van  Sandau,.6  Q.  B.  237,  B. 
C.  L.  R.  vol.  51. 

(/)   Ridout  V.  Pye,  1  Bos.  &  P.  91.        * 

(toj  Whitinore  v.  Smith,  5  H.  &  N.  824. 

{//)   Attorney-General  v.  Davidson,  McClel.  AY.  UJO. 

{o)  Stalworth  v.  Inns,  13  Mee.  &  Wels.  4Gfi  ;  Wude  v.  Bowling,  Q.  B.  18  Jur.  728  ;  2  B. 
&  B.  44,  E.  C.  L.  R.  vol.  75  ;  Eads  v.  Williams,  4  De  Qex,  M.  &  G.  674,  688. 

(/>)   Sainon's  Case,  5  Rep.  77  b. 


270  OF  cnosES  in  action. 

rule  of  law  is  id  cerium  est  quod  cerium  rcddi  poiesi,  and  therefore 
an  award  that  one  of  the  parties  should  pay  the  costs  of  an  action 
is  good  without  fixing  the  amount  of  the  costs,  for  that  may  be 
ascertained  by  the  taxing  officer.(<7)  On  the  question  of  finality 
many  cases  have  arisen.  If  the  arbitrators  be  empowered  to  decide 
all  matters  in  difterence  between  the  parties,  the  award  will  not 
necessarily  be  wanting  in  finality  for  not  deciding  on  all  such 
matters,  unless  it  appear  to  have  been  required  that  all  such 
matters  should  be  determined  by  the  award. (r)  If  the  award 
reserve  to  the  arbitrators, (s)  or  give  to  any  other  pcrson,(/)  or  to 
one  of  the  parties,(i6)  any  further  authority  or  discretion  in  the 
matter,  it  will  be  bad  for  want  of  finality.  And  if  the.  award  be 
that  any  stranger  to  the  reference  should  do  an  act,  or  that  money 
should  be  paid  to,  or  any  other  act  done  in  favor  of  a  stranger, 
unless  for  the  benefit  of  one  of  the  parties, (x)  such  award  will  be 
void.(;^!/)  An  award,  however,  may  be  partly  good  and  partly 
bad,  provided  the  bad  part  is  independent  of  and  can  be 
separated  from  that  wliieh  is  good.(2:)  But  if,  by  reason  of  the 
invalidity  of  part  of  the  award,  one  of  the  parties  cannot  have 
r^T-j.!  ^^^®  advantage  ^intended  for  him  as  a  recompense  for  that 
■-  -'  which  he  is  to  do,  according  to  that  part  of  the  award 
which  would  otherwise  be  valid,  the  whole  will  be  void. (a)  If  it 
should  appear  on  the  face  of  the  award  that  the  arbitrators,  in- 
tending to  decide  a  point  of  law,  have  fallen  into  an  obvious 
mistake  of  the  law,  the  award  will  be  invalid.(6)  But  where 
subjects  involving  questions  both  of  law  and  fact  are  referred  to 
arbitration,  the  arbitrators  may  make  an  award  according  to 
what  they  believe  to  be  the  justice  of  the  case,  irrespective  of  the 

(q)  Cargey  v.  Aitcheson,  2  B.  &  Cress.  170,  E.  C.  L.  R.  vol.  9  ;  S.  C.  3  Dowl.  &  Ry.  433  ; 
2  Wni.s.  Saund.  293  b,  n.  (a). 

(r)   Wrightson  v.  Bywater,  3  Mee.  &  Wels.  199  ;   1  Wm.s.  Saund.  32  a,  n.  (a). 

(s)   Manser  v.  Heaver,  3  Bar.  &  Adol.  295,  E.  C.  L.  R.  vol.  5. 

(t)  Tonilin  v.  Mayor  of  Fordwich,  5  Ad.  &  Ell.  147,  E.  C.  L.  R.  vol.  31. 

(u)   Ulover  v.  Barrie,  1  Salk.  71. 

(x)  Wood  V.  Adcock,  7  Ex.  Rep,  468. 

(y)  Cooke  v.  Whorwood,  2  Saund.  337  ;  Adam  v.  Statham,  2  Lev.  235  ;  Fi.sher  v.  Piinb- 
ley,  11  East,  188. 

(z)   Fox  V.  Smith,  2  AVils.  267  ;  Aitcheson  v.  Cargey,  2  Bing.  199,  E.  C.  L.  R.  vol.  9. 

(a)  2  Wms.  Saund.  293  b,  n.  (1). 

(i)  Ridout  V.  Pain,  3  Atk.  494,-  Richardson  v.  Nourse,  3  Barn.  &  Aid.  237,  E.  C.  L.  R. 
vol.  5. 


OF    ARBITRATION.  271 

law  on  any  particular  point.(c)  And  it  is  now  provided,  that  it 
shall  be  lawful  for  the  arbitrator,  upon  an}'  compulsory  reference 
under  the  Common  Law  Procedure  Act,  1854,  or  upon  any  refer- 
ence by  consent  of  parties,  where  the  submission  is  or  may  be 
made  a  rule  or  order  of  any  of  the  superior  courts  of  law  or 
equity  at  Westminster,  if  he  shall  think  fit,  and  if  it  is  not  pro- 
\dded  to  the  contrary,  to  state  his  award  as  to  the  whole  or  any 
part  thereof  in  the  form  of  a  special  case  for  the  opinion  of  the 
court;  and  when  an  action  is  referred,  judgment,  if  so  ordered, 
may  be  entered  according  to  the  opinion  of  the  court.((/) 

When  the  submission  to  arbitration  is  not  made  the  rule  of  any 
other  court,(e)  the  Court  of  Chancery,  according  to  the  ordinary 
principles  of  equity,  has  power  to  set  aside  the  award  for  corrup- 
tion or  other  misconduct  on  the  part  of.  the  arbitrators,  or  if  they 
should  be  mistaken  in  a  plain  point  of  law  or  fact.(/)  If  the 
submission  be  made  a  rule  of  court  under  the  above-mentioned 
statute  of  Will.  III,(^)  the  court  of  which  it  is  *made  a  ^-^-.t^r-i 
rule  has  power  to  set  aside  the  award,  not  only  on  the  '-  -• 
grounds  of  corruption  or  undue  practice  mentioned  in  the  act, 
but  also  for  mistakes  in  point  of  law;(A)  and  no  other  court  has  a 
right  to  entertain  any  application  for  this  purpose.(z)  The  appli- 
cation to  set  aside  the  award  must,  however,  be  made  within  the 
time  limited  by  the  act.(A-)  But  although  the  time  limited  by  that 
statute  may  have  expired,  yet,  if  there  be  any  defect  apparent  on 
the  face  of  the  award,  the  court  will  not  assist  in  carrying  it  into 
eflect  by  granting  an  attachment  for  its  non-performance.(^)  If 
the  submission  to  arbitration  be  made  by  rule  or  order  of  the 
court  in  any  cause  independently  of  the  statute,  the  court  still 
retains  its  ancient  jurisdiction  of  setting  aside  the  award  on  ac- 
count either  of  the  misconduct  of  the  arbitrators,  or  of  their  mis- 
take in  point  of  law.(wi)     In  analogy,  however,  to  the  practice ' 

(<•)  Re  Badger,  2  Barn.  &  Aid.  691  ;  Young  v.  Walker,  9  Ves.  364  ;  Hodgkinson  v.  Fernie, 
3  C.  B.  N.  S    189,  E.  C.  L.  R.  vol.  91. 

(d)  Stat.  17  &  18  Vict.  c.  125,  s.  5.  (/)  Ridout  v.  Pain,  3  Atk.  494. 

(e)  Nichols  V.  Roe,  3  Myl.  &  Keen,  431.  (g)   Stat.  9  &  10  Will.  Ill,  c.  15. 

{h)  Zachary  f.  Shepherd,  2  T.  Rep.  781;  Lowndes  v.  Lowndes,  1  East,  276,  overruling 
Anderson  v.  Coxeter,  1  Str.  301  ;  see  1  Wins.  Saund.  327  d,  n.  {s). 

(i)  Stat.  9  A  10  Will.  Ill,  c.  15,  s.  2;  Nichols  v.  Roe,  3  Myl.  &  Keen,  431. 

(>t)  Lowndes  v.  Lowndes,  1  East,  276  ;  a7ite,  p.  167. 

(/)  Pedley  v.  Qoddard,  7  T.  Rep.  73.  (m)  Lucas  v.  Wilson.  2  Burr.  701. 


272  OF   CHOSES   IN    ACTION. 

under  the  statute  of  Will.  Ill,  the  court  in  ordinary  cases  re- 
quires application  for  setting  aside  the  award  to  be  made  within 
the  time  limited  by  that  statute  ;(?2)  but  upon  sufficient  grounds  it 
will  grant  such  an  application,  though  made  after  the  expiration 
of  that  time.(o)  All  applications,  however,  to  set  aside  any  award 
made  on  a  compulsory  reference  under  the  Common  Law  Pro- 
cedure Act,  1854,  must  be  made  within  the  first  seven  days  of  the 
term  next  following  the  publication  of  the  award  to  the  parties, 
whether  made  in  vacation  or  term ;  and  if  no  such  application  is 

made,  or  if  no  rule  is  granted  thereon,  *or  if  anv  rule  ^,^„^-. 

.  .  r  1761 

granted  thereon  is  afterwards  discharged,  the  award  is  •-        -• 

final. (7^)  The  court  or  a  judge  has  also  power  to  remit  the  mat- 
ters referred  to  arbitration,  or  any  of  them,  to  the  reconsideration 
of  the  arbitrator,  upon  such  terms  as  to  costs  and  otherwise  as  to 
such  court  or  judge  may  seem  proper.(5') 

It  is  usual  to  provide  for  the  appointment  of  an  umpire  in  case 
the  parties  should  disagree.  But  the  Common  Law  Procedure 
Act,  1854,  now  provides, (r)  that  when  the  reference  is  to  two  arbi- 
trators, and  the  terms  of  the  document  authorizing  it  do  not  show 
that  it  was  intended  that  there  should  not  be  an  umpire,  or  provide 
otherwise  for  the  appointment  of  an  umpire,  the  two  arbitrators 
may  appoint  an  umpire  at  any  time  within  the  period  during 
which  they  have  power  to  make  an  award,  unless  they  be  called 
upon  to  make  the  appointment  sooner,  by  notice  under  the  follow- 
ing provision.  And  if,  where  the  parties  or  two  arbitrators  are  at 
liberty  to  appoint  an  umpire  or  third  arbitrator,  such  parties  or 
arbitrators  do  not  appoint  an  umpire  or  third  arbitrator,  or  if  any 
appointed  umpire  or  third  arbitrator  refuse  to  act,  or  become  in- 
capable of  acting,  or  die,  and  the  terms  of  the  document  author- 
izing the  reference  do  not  show  that  it  was  intended  that  such  a 
vacancy  should  not  be  supplied,  and  the  parties  or  arbitrators 
respectively  do  not  appoint  a  new  one,  then  any  party  may  serve 
the  remaining  parties  or  the  arbitrators,  as  the  case  may  be,  with 
a  written  notice  to  appoint  an  umpire  or  third  arbitrator ;  and,  if 

(w)  Maearthur  v.  Campbell,  5  Barn.  &  Adol.  518,  E.  C.  L  R.  vol.  27. 
(o)  Rawsthorn  v.  Arnold,  6  Barn.  &  Cress.  629,  E.  C.  L.  R.  vol.  13  ;   S.  C.  9  Dow.  &  Ry. 
556. 

(/))   Stat.  17  ..t  18  Vict.  c.  125,  s.  9.  (r)   Stat.  17  k  18  Vict.  c.  125,  s.  14. 

(q)  Ibid.  s.  8. 


OF    ARBITRATION.  273 

within  seven  clear  days  after  such  notice  shall  have  been  served 
no  umpire  or  third  arbitrator  be  appointed,  it  shall  be  lawful  for 
any  judge  of  any  of  the  superior  courts  of  law  or  equity  at  West- 
minster, upon  summons  *to  be  taken  out  by  the  party  r^-^^^-, 
having  served  such  notice,  to  appoint  an  umpire  or  third 
arbitrator,  who  shall  have  the  same  power  to  act  in  the  reference 
and  make  an  award  as  if  he  had  been  appointed  by  consent  of 
all  parties.(5) 

If  an  umpire  be  appointed,  his  authority  to  make  an  award 
commences  from  the  time  of  the  disagreement  of  the  arbitra- 
tors,(^)  unless  some  other  period  be  expressly  fixed ;  and  if,  after 
the  disagreement  of  the  arbitrators,  he  make  an  award  before  the 
expiration  of  the  time  given  to  the  arbitrators  to  make  their 
award,  such  award  will  nevertheless  be  valid.(M)  And  it  is  now 
provided  that  if  the  arbitrators  shall  have  allowed  their  time,  or 
their  extended  time,  to  expire  without  making  an  award,  or  shall 
have  delivered  to  any  party,  or  to  the  umpire,  a  notice  in  writing 
stating  that  they  cannot  agree,  the  umpire  may  enter  on  the  refer- 
ence in  Heu  of  the  arbitrators. (x)  The  umpire  must  be  chosen 
by  the  arbitrators  in  the  exercise  of  their  judgment  and  at  the 
same  time,(^)  and  must  not  be  determined  by  lot,(^)  unless  all  the 
parties  to  the  reference  consent  to  his  appointment  by  such 
means. (a)  In  order  to  enable  him  to  form  a  proper  decision,  he 
ought  to  hear  the  whole  evidence  over  again,(6)  unless  the  parties 
should  be  satisfied  with  his  deciding  on  the  statement  of  the  ar- 
bitrators.(c)  And  the  whole  matter  *in  difference  must  r^-i  Ygl 
be  submitted  to  his  decision,  and  not  some  particular 
points  only  on  which  the  arbitrators  may  disagree. (<i) 

(5)  Stat.  17  &  18  Vict.  c.  125,  s.  12  ;  see  Ke  Lord,  1  K.  &  Johnson,  90  ;  Collins  v.  Collins, 
26  Beav.  .306. 

(t)  Smailes  v.  Wright,  3  Mau.  &  Sel.  559  ;  Sprigens  v.  Nash,  5  Mau.  &  Sal.  193. 

(?«)  Sprigens  v.  Nash,  iibi  svp. 

{x)  Stat.  17  &  18  Viet.  c.  125,  s.  15. 

(y)  Re  Lord,  Q.  B.  1  Jur.  N.  S.  893 ;  5  E.  &,B.  404,  E.  C.  L.  R.  vol.  86. 

(z)  In  Re  Cassell,  9  Barn.  &  Cress.  624,  E.  C.  L.  R.  vol.  17  ;  Ford  v.  Jones,  3  Barn.  & 
Adol.  248,  E.  C.  L.  R.  vol.  23  ;  European,  <tc.,  Shipping  Company  v.  Crosskey,  8  C.  B.  N. 
S.  397,  E.  C.  L.  R.  vol.  98. 

(a)  Re  Jamieson,  4  Adol.  &  Ell.  945,  E.  C.  L.  R.  vol.  31. 

(b)  Re  Salkeld,  12  Ad.  &  Ell.  767,  E.  C.  L.  R.  vol.  40  ;  Re  Hawley,  2  De  Gex  &  Smale,  33. 
fc)  Hall  V.  Lawrence,  4  T.  Rep.  589.  (d)  Tollit  v.  Saunders,  9  Price,  612. 

18 


274  OF  cnosES  in  action. 

An  award  for  the  payment  of  money  creates  a  debt  from  one 
party  to  the  other,  for  which  an  action  may  be  brought  in  an}' 
court  of  law,(r)  and  wliich  will  be  sufficient  to  support  a  petition 
for  adjudication  of  bankruptcy. (/)  But  when  the  award  is  made 
a  rule  of  court,  its  performance  may,  as  we  have  seen,(^)  be  en- 
forced by  attachment.  And  where  the  reference  is  made  by 
order  of  the  Court  of  Chancery,(/i)  or  where  the  award  requires 
any  act  to  be  done  which  cannot  be  enforced  by  an  action  at  law,(?) 
equity  will  decree  a  specific  performance.  And  it  is  naw  pro- 
Anded  that,  when  any  award  directs  possession  of  any  lands  or 
tenements  to  be  delivered  to  any  party,  the  court,  of  which  the 
document  authorizing  the  reference  is  or  is  made  a  rule  or  order, 
may  order  any  party  to  the  reference  who  shall  be  in  possession 
of  such  lands  or  tenements,  or  any  person  in  possession  of  the 
same,  claiming  under  or  put  in  possession  by  him  since  the  mak- 
ing of  the  document  authorizing  the  reference,  to  deliver  pos- 
session of  the  same  to  the  party  entitled  thereto  pursuant  to 
the  aAvard ;  and  such  rule  or  order  to  deliver  possession  shall  have 
the  efiiect  of  a  judgment  in  ejectment  against  every  such  party  or 
person  named  in  it,  and  execution  may  issue,  and  possession  shall 
be  delivered  by  the  sherifl'as  on  a  judgment  in  ejectment. (/t) 
P^^H.Q-|  *The  award  of  arbitrators  or  of  an  umpire,  though  in- 
L  -'  dented  and  under  hand  and  seal,  is  not  a  deed  unless  de- 
livered as  such.(^)  It  is  now  subject  to  stamp  duty  according  to 
the  table  in  the  note.(m) 

(e)   2  WmF.  Saund.  62  a,  n.  (5). 

(/)  Ex  parte  Lingard,  1  Atk.  241. 

(g-)   Aiite,  p.  166. 

(k)   Marquis  of  Ormond  i:  Kynnersley,  2  Sim.  &  Stu.  15;  Wood  v.  Taunton,  11  Beav.  449. 

(?)   Hall  V.  Hardy,  3  P.  Wms.  190. 

(/.•)   Stat.  17  &  18  Vict.  c.  125,  s.  16. 

{I)  Brown  V.  Vawser,  4  East,  584.  £     s.    d. 

{m)  Where  the  amount  or  value  of  the  matter  in  dispute  shall  not  exceed 

£50 026 

And  where  it  shall  exceed  £50,  and  not  exceed  £100 0     5     0 

And  where  it  shall  exceed  £100,  and  not  exceed  £200,      .     .     .     '.     .       0  10     0 

And  where  it  shall  exceed  £200,  and  tot  exceed  £500 0  15     0 

And  where  it  shall  exceed  £500,  and  not  exceed  £750, 10     0 

And  where  it  shall  exceed  £750,  and  not  exceed  £1,000 15     0 

And  where  it  shall  exceed  £1,000,  and  also  in  all  other  cases  not  above 

provided  for, 1  15     0(i) 

1  Awards  are  not  made  liable  to  stamp  duty  by  the  Act  of  Congress  of  March  3,  1865. 


*PART   III.  [*i80] 

OF  mCORPOREAL  PERSONAL  PRORERTY. 


CHAPTER    I. 

OF   PERSONAL   ANNUITIES,   STOCKS,  AND    SHARES. 

In  addition  to  goods  and  chattels  in  possession,  which  have 
always  been  personal  property,  and  to  debts,  which  have  long  since 
been  considered  so,  there  exist  in  modern  l^mes  several  species  of 
incorporeal  personal  property,  to  which  we  now  propose  to  direct 
our  attention.  These  species  of  property  are  certainly  not  choses 
in  possession,  neither  yet  are  they  like  debts  strictly  choses  in  action, 
though  often  classed  as  such.  In  analogy,  therefore,  to  the  well- 
known  division  of  real  estate  into  corporeal  and  incorporeal,  we 
have  ventured  to  place  these  kinds  of  property  together  into  a 
class  to  be  denominated  incorporeal  personal  jivoperiy.  A  debt  no 
doubt  is  also  incorporeal,  but  it  is  still  well  characterized  by  its 
ancient  name  of  a  chose  in  action. 

The  first  kind  of  incorporeal  personal  property  which  we  shall 
mention  is  a  personal  annuity}  This  kind  of  property  is  not  in- 
deed of  so  modern  kn  origin  as  some  of  those  which  we  shall 
hereafter  mention.  It  consists  of  an  annual  payment,  not  charged 
on  real  estate ;  but  it  may  nevertheless  be  limited  to  the  heirs,  or 
the  heirs  of  the  body  of  the  grantee.  In  former  times  it  was' 
doubted  whether  an  annuity  was  not  a  mere  chose  in  action,  and 
therefore  incapable  of  assignment  ;(a)  *but  this  objection  r^H^g;}^-! 
has  long  been  overruled.     When  limited  to  the  heirs  of  ^ 

(«)  Co.  Litfc.  144  b.  n.  (1). 


•  As  a  part  of  the  law  of  this  country,  this  velopment  of  the  legal  principles  relating  to 
subject  has  become  of  far  more  practical  im-  life  insurance,  which  embrace  most,  it  not 
portance  than  formerly,  from  the  gradual  de-    all,  of  those  applicable  to  personal  annuities. 


V 


276  OF    INCORPOREAL   PERSONAL   PROPERTY. 

tlie  grantee  it  will,  on  his  intestacy,  descend,  like  real  estate,  to 
his  heir;  but  it  is  still  personal  property,(6)  and  will  pass  by  his 
AA-ill  nnder  a  bequest  of  all  his  personal  estate.(c)  When  given 
to  the  grantee  and  the  heirs  of  his  body,  the  grantee  does  not 
acquire  an  estate  tail ;  for  this  kind  of  inheritance  is  not  a  tene- 
ment within  the  meaning  of  the  statute  De  Donis  CondiiionaU- 
bus.{d)  The  grantee  has  merely  a  fee  simple  conditional  on  his 
having  issue,  such  as  a  grantee  of  the  lands  Avould  have  had  under 
a  similar  grant  prior  to  the  statute  De  Donis,{e)  or  as  a  copyholder 
would  now  take  in  manors  where  there  is  no  custom  to  entail. (/) 
When  the  grantee  has  issue,  he  may  therefore  alien  the  annuity 
in  fee  simple  by  a  mere  assignment ;  but  should  he  die  without 
issue,  the  annuity  will  fail.  A  personal  annuity  given  to  a  man 
forever  will  devolve  on  the  executor,  and  not  on  the  heir  of  the 
grautee.(^)^ 

The  next  kind  of  incorporeal  personal  property  to  be  considered 
is  stock  in  the  public  funds,  or  bank  annuities.  Previously  to 
the  Eevolution  in  1688,  there  was  no  funded  debt  properly  so 
called;  although  King  Charles  I  and  King  Charles  II  both  found 
occasion  to  raise  money  by  the  grant  of  annuities  in  fee  simple 
chargeable  on  particular  branches  of  the  revenue.  These  annu- 
ities, not  being  payable  out  of  real  estate,  appear  to  have  been 
the  first  instances  of  personal  annuities  limited  to  the  grantees 
r+IK-^l  ^^^^  their  heirs,  and  they  gave  *occasion  to  those  lawsuits 
by  which  the  legal  nature  and  incidents  of  personal  annu- 
ities have  been  determined;  although  some  mention  of  such 
annuities  is  certainly  to  be  found  in  the  old  books. (A)  Soon  after 
the  Revolution,  however,  a  portion  of  the  public  debt  was  funded, 

(6)  Earl  of  StafiFord  v.  Buckley,  3  Ves.  Sen.  171  ;  Radburn  v.  Jervis,  3  Beav.  450,  461. 
{c)   Aubin  v.  Daly,  4  Harn.  &,  Aid.  59,  E.  C.  L.  R.  vol.  6. 

(d)  Turner  v.  Turner,  2  Amb.  776,  782  ;  Earl  of  Stafford  v.  Buckley,  nbi  si/p. 
(«)   See  Principles  of  the  Law  of  Real  Property,  30,  36,  2d  ed.  ;  32,  38,  3d  &  4th  eds.  ;  35, 
41,  5th  &  6th  eds. 

(/)  Ibid.  286,  2d  ed.  ;  295,  3d  ed.  ;  299,  4th  ed.  ;  310,  5th  ed.  ;   327,  6th  ed. 
(§•)   Taylor  v.  Martindale,  12  Sim.  158. 
(h)  Co.  Litt.  144  b  ;  Fitz.  N.  B.  152  a. 

1  Where  an  annuity  is  given  by  will,  and  76  ;  Hall  v.  Hall,  2  McCord's  Ch.  R.  281 ; 

there  is  no  direction  as  to  the  time  when  it  Wiggin  v.   Swett,   6  Met.  R.   194  ;    Eyre  v. 

shall  commence,  it  commences  at  the  testa-  Golding,   5    Bin.  R.  474;   Hilyard's   Est.,  5 

tor's  dsath  ;  Craig  v.  Craig,  3  Barb.  Ch.  R.  Wat.  &  Serg.  R.  30. 


OF   PERSONAL   ANNUITIES,    STOCKS,    AND    SHARES.  277 

or  transferred  into  perpetual  annuities,  payable,  by  way  of  in- 
terest, on  the  capital  advanced,  which  capital  was  to  be  repaid  by 
the  government  in  the  manner  agreed  on.  And  from  that  time 
to  the  present,  the  funded  debt  of  the  country  has  by  several 
acts  of  Parliament,  been  greatly  increased.  Stock  in  the  funds, 
therefore,  is  merely  a  right  to  receive  certain  annuities,  by  half- 
yearly  dividends,  as  they  become  due,(«')  subject  to  the  right  of 
government  to  redeem  such  annuities  on  payment  of  a  stipulated 
sum,  which  sum  is  the  nominal  value  of  the  stock.  Thus,  100^. 
£3  per  cent.  Consolidated  Bank  Annuities  is  a  right  to  receive 
81  per  annum  forever,  subject  to  the  right  of  government  to 
redeem  this  annuity  on  payment  of  100^.  sterling.  The  actual 
value  of  100?.  £3  per  cent.  Consolidated  Bank  Annuities  (or 
Consols  as  they  are  shortly  termed)  of  course  depends  on  the 
state  of  the  stock  market,  being  generally  lower,  though  it  has 
lately  been  higher,  than  the  nominal  price,  which  is  called  par. 

The  public  funds  are  composed  of  several  separate  stocks,  of 
which,  however,  by  far  the  largest  and  most  important  are  the 
consols.  In  this  fund  alone  the  Court  of  Chancery  formerly 
invested  all  the  money  committed  to  its  care  belonging  to  the 
suitors  in  that  court;  and,  as  it  is  a  rule  of  equity,  that  whatever 
the  court  would  certainly  order  to  be  done  may  be  done  without 
applying  to  the  court,  every  trustee  and  executor  was  justified 
*iu  investing  in  consols  any  money  which  he  might  have  r:).-|oQ-| 
held  in  trust,  without  any  express  direction  for  that  pur- 
pose.(A-)  But  should  he  have  invested  trust  money  upon  any 
other  security,  without  express  authority  so  to  do,  he  would  have 
been  answerable  to  his  cestuis  que  trust  for  the  amount  of  the 
money  so  invested,  should  the  security  have  failed;  and  it  seems 
also,  that  the  cestui  que  trust  had  an  option  either  to  claim  the 
money,  or  to  have  so  much  stock  as  the  money  improperly  in- 
vested would  have  purchased  at  the  time  when  the  improper 
investment  was  made.(?)  But  when  the  trustee  was  authorized 
by  the  terms  of  his  trust  to  invest  either  in  the  funds  or  on  real 

(t)  Wildman  v.  Wildman,  7  Vee.  174,  177;  Rowlings  v.  Jennings,  13  Ves.  38.  45. 

(/.)  Howe  V.  Lord  Dartmouth,  7  Ves.  150  ;  Holland  v.  Hughes,  16  Ves.  114  ;  Tobbs  v. 
Carpenter,  1  Mad.  30B  ;  Norbury  v.  Norbury,  4  Mad.  191. 

(/)  Forrest  v.  Elwes,  4  Ves.  497  ;  Pride  v.  Fooks,  2  Beav.  430  ;  Robinson  v.  Robin.«on, 
Lords  Justices,  1  De  Qex,  Mac.  &  Gord.  247. 


278  OF   INCORPOREAL   PERSONAL   PROPERTY. 

securities,  it  was  decided,  after  much  conflict  of  opinion,  that  the 
cestui  que  trust  had  no  option  to  charge  the  defaulting  trustee 
with  any  larger  sum  than  the  amount  of  the  money  lost,  with 
interest  at  four  per  cent.  For  had  the  trustee  chosen,  as  he 
might,  to  invest  on  real  security,  the  cestui  que  trust  would  have 
gained  nothing  by  the  subsequent  rise  in  the  funds.(wi)  Recent 
enactments  have  however  now  largely  extended  the  investments 
in  which  trust  funds  may  be  placed. (m)* 

The  legal  nature  and  incidents  of  stock  in  the  public  funds 
have  been  flxed  by  the  various  acts  of  Parliament  by  which  these 
funds  have  been  created.  These  statutes  are  far  too  numerous 
to  be  here  mentioned;  but  their  provisions  are  generally  similar. 
By  one  of  the  earliest  of  these  statutes,(o)  it  is  provided,  that  all 
persons  who  *shall  be  entitled  to  any  of  the  annuities 
•-  -'  thereby  created,  and  all  persons  lawfully  claiming  under 
them,  shall  be  possessed  thereof  as  of  a  personal  estate,  and  the 
same  shall  not  be  descendible  to  the  heir.  And  the  same  rule  holds 
with  respect  to  all  the  public  funds  which  now  exist. 

•  The  transfer  of  stock  in  the  public  funds  is  effected  only  by 
the  signature  of  the  books  at  the  Bank  of  England  in  the  manner 
prescribed  by  act  of  Parliament;  and  this  transfer  may  be  effected 
either  in  person  or  by  attorney  duly  appointed  for  the  purpose  by 
writing,  under  hand  and  seal,  attested  by  two  or  more  credible 
witnesses. (j9)  The  legal  title  to  stock  belongs  to  the  person  in 
whose  name  it  is  standing  in  the  bank  books;  and  the  bank 
refuses  to  recognize  trusts,  or  to  keep  more  than  one  account  for 
the  same  person;  neither  will  it  allow  of  the  transfer  of  any  stock 
mto  the  names  of  more  than  four  persons.  Formerly  the  right 
to  stock  always  carried  the  right  to  the  current  half-year's  divi- 
dend, and  the  transfer  books  were  closed  for  some  days  prior  to 

(m)  Robinson  v.  Robinson,  iihi  sup.,  overruling  Watts  v.  Girdlestone,  6  Beav.  188  ;  Ames 
V.  Parkinson,  7  Beav.  379  ;  and  Ouseley  v.  Anstruther,  10  Beav.  456. 
{ii)  Seepost,  the  chapter  on  "Settlements." 
(o)   Stat.  1  Geo.  I,  st.  2,  c.  19.  s.  9. 
(p)  Stat*.  1  Geo.  I,  st.  2,  c.  19,  s.  11,  and  subsequent  acts. 

1  As  a  general  rule,  the  courts  having  juris-  trust  funds,  in  the  debt  of  the  United  States, 
diction,  on  njiplioation  made  to  them  for  that  or  of  some  State;  in  some  municipal  loan,  or 
purpose,  would  authorize  the  investment  of  on  real  security. 


OF   PERSONAL   ANNUITIES,    STOCKS,    AND    SHARES.         279 

the  days  of  payment  of  the  dividends.  But  a  day  for  closing  the 
books  is  now  fixed  in  the  month  preceding  that  in  which  the 
dividends  are  payable;  and  the  person  whose  name  then  appears 
inscribed  in  the  books  as  proprietor  is,  as  between  him  and  the 
transferree,  entitled  to  the  current  half-year's  dividend  ;  and  after 
that  day  the  person  to  whom  any  transfer  is  made  is  not  entitled 
to  the  current  dividend.(^)  When  stock  is  standing  in  the  name 
of  a  trustee,  the  beneficial  owner  may  transfer  his  equitable  in- 
terest in  any  manner  he  pleases.  As  the  claim  of  the  beneficial 
owner  is  equitable  only,  there  will  be  no  occasion  to  give  to  the 
transferree  a  power  of  attorney  to  sue  in  the  name  of  the  trans- 
ferror;(r)  and*the  transferee,  on  giving  notice  of  the  trans-  r^j^-jor-. 
fer  to  the  trustee,  will  be  entitled  to  a  legal  transfer  of  the  ^  -^ 
stock  into  his  own  name  in  the  books  at  the  Bank.  A  recent 
act  of  Parliament  contains  provisions  for  the  conversion  of  stock 
transferable  only  at  the  Bank,  into  stock  certificates  payable  to 
bearer ;  and  transferable  accordingly  from  hand  to  hand. (5) 

As  the  constant  fluctuations  of  the  value  of  the  funds  were  long 
since  found  to  present  a  great  temptation  to  gambling  on  the 
chance  of  their  rise  or  fall,  an  act  was  passed  in  the  reign  of  Geo. 
II(/)  for  the  purpose  of  suppressing  such  transactions.  This  act 
was  introduced  into  Parliament  by  Sir  John  Barnard,  whose  name 
it  bears,  and  it  was  entitled  "An  Act  to  prevent  the  infamous 
Practice  of  Stockjobbing."^     It  contained  several  provisions  di- 

(fy)   Stat.  24  Vict.  e.  3,  s.  7.  («)   Stat.  26  Vict.  c.  28. 

(r)  See  ante,  p.  6.  (<)   Stat.  7  Geo.  II,  c.  8. 

'  A  provision  similar  to  that  referred  to  in  contracted  to  be  sold,  the  would-be  purchasers 

the  text,  was  formerly  the  law  of  New  York,  could  not  maintain  an  action  against  them, 

whereby  it  was  declared,  that  all  contracts,  the   transaction    being  void  ;    Ward  v.   Van 

written  or  verbal,  for  the  sale  or  transfer  of  Duser,  2  Hall's  B.  162.    And  see,  also,  Gram 

stocks,  are  void,  unless  the  party  contracting  v.  Stebbins  et  al.,  6  Paige's  Ch.  R.  124. 
to  sell,  be  at  the  time  in  the  actual  possession       In  Massachusetts,  upon  an  interpretation 

of  the  evidence  of  the  debt  or   interest,  or  of  this  statute,  it  has  been  decided,  that  al- 

otherwise  entitled   in  his  own  right,   or  has  though  a  person  contracting  for  the  sale  and 

due  authority  to  sell  the  same.  transfer  of  stock,  be  in  possession  of  the  cer^ 

Under  this  statute  it  was  held,  that  where,  tificate  or  other  evidence  of  the  title  to  such 

at  the  time  of  the  purchase  of  stock,  the  per-  stock,  as  required  by  statute,  at  the  time  of 

sons  with  whom  the  contract  was  made,  had  the  contract,  yet  if  he  is  nevertheless  then  al- 

no  stock  standing  in  their  names,  upon  the  ready  under  a  liability  or  obligation  for  the 

books  of  the  corporation  that  had  issued  the  sale  and  transfer  of  an  equal  or  greater  nuni- 

."tock,    and   there  was  no  other  evidence  to  her  of  shares  of  the  same  stock,  the  contract 

prove  that  they  were  the  owners  of  the  slock  is  absolutely  void  ;  Stebbins  et  al.  v.  Leowolf, 


280  OF   INCORPOREAL   PERSONAL   PROPERTY. 

rected  against  the  practice  of  fictitious  sales  of  stock  for  a  future 
time,  where  the  seller  had  not  the  stock  he  sold,  neither  intended 
to  procure  it,  and  the  buyer  had  no  intention  to  purchase  the 
amount  he  contracted  for;  but  the  only  object  of  the  parties  was 
that,  should  the  stock  rise,  the  vendor  should  pay  the  buyer  the 
difference  occasioned  by  the  increase  in  price,  and,  should  it  fall, 
the  buyer  should  pay  the  vendor  the  diiference  occasioned  by  the 
decrease. (?/)  But  this  act,  having  been  found  to  interfere  with 
legitimate  transactions,  has  lately  been  repealed. (x) 

r*i8rn  *It  seems  that  stock  is  not  goods,  wares,  or  merchandise, 
^  -•  within  the  17th  section  of  the  Statute  of  Frauds,(?/)  so  that 
it  does  not  require  a  written  memorandum  for  a  contract  for  its 
sale,  if  the  value  exceeds  ten  pounds  and  the  buyer  does  not  ac- 
cept and  receive  any  part,  nor  give  something  in  earnest  to  bind 
the  bargain  or  in  part  pa3mient.(2)  Contract  notes  for  the  sale  or 
purchase  of  government  or  other  public  stocks  or  shares,  to  the 
amount  or  value  of  five  pounds  or  upwards,  are  now  liable  to  a 
stamp  duty  of  one  penny,  (a)^ 

By  a  modern  act  of  Parliament,  the  Court  of  Chancery  is  em- 
powered to  order  the  dividends  of  stock  belonging  to  infants  to 

(«)  See  Child  v.  Morley,  8  T.  Rep.  610  ;  Heckscher  v  Gregory,  4  East,  607,  614.  The 
buj'er  who  is  interested  in  the  rise  of  the  funds,  is  called,  in  the  language  of  the  Stock 
Exchange,  a  bull ;  the  seller  is  a  bear ;  but  either  party,  if  unable  to  pay  his  differences, 
becomes  a  lame  dnch.  A  stockjobber,  properly  so  called,  is  a  person  who  supplies  the  pub- 
lic, through  the  medium  of  the  brokers,  with  money  or  stock  to  the  exact  amount  they  may 
require,  making  a  profit  only  of  l-8th  per  cent,  on  each  transaction  ;  a  course  of  business 
altogether  different  from  the  "infamous"  practices  usually  called  stockjobbing  by  the 
public. 

{x)  Stat.  23  Vict.  c.  28. 

(y)   Stat.  29  Car.  II,  c.  3.     See  ante,  p.  38. 

{z)  See  Numes  v.  Scipio,  1  Com.  356  ;  Pickering  v.  Appleby,  1  Com.  354  ;  2  P.  Wms. 
308;  Pawle  v.  Gunn,  4  Bing.  N.  C.  445,  E.  C.  L.  R.  vol.  33;  Humble  v.  Mitchell,  11  A.  & 
E.  205,  E.  C.  L.  R.  vol.  39  ;  Knight  v.  Barber,  16  M.  &  W.  66. 

(a)  Stat.  23  &  24  Vict.  c.  111. 

3  Cush.  R.  137;  but  that  a  contract  for  the  But  this  law  has  since  been  repealed  ;  see 

sale  of  railroad  stock,  by  one  who  has  pre-  N.  Y.  Rev.  Stats.  1859,  vol.  ii,  p.  980  ;  Wash- 

viously  pledged  it,  and  of  which  the  pawnee  burn  v.  Franklin,  28  Barb.  R.  27. 

holds  the  certificate,   but  which  the  pawnor  See  also  a?ite,  p.  88,  note  1. 

is  authorized  by  the  pawnee  to  sell  whenever  i  By  the  Internal  Revenue  Act,  a  broker's 

he    has   an    opportunity,   is   not   within   the  note  or  memorandum  of  the  sale  of  stock,  is 

New  York  statute  concerning  stockjobbing  ;  liable  to  a  stamp  duty  of  ten  cents. 
Thompson  v.  Alger,  12  Metcf.  R.  428. 


OF   PERSONAL   ANNUITIES,    STOCKS,    AND    SHARES.  281 

be  applied  for  their  maintenance. (6)  By  another  act  the  Lord 
Chancellor  is  empowered  to  appoint  a  person  to  transfer  stock 
and  receive  and  pay  over  dividends,  standing  in  the  name  of  or 
vested  in  any  lunatic,  idiot  or  person  of  unsound  mind  beneficially 
entitled  thereto,  or  standing  in  the  name  of  or  vested  in  the  com- 
mittee of  a  lunatic  who  may  have  died  intestate,  or  himself  be- 
come lunatic,  or  may  be  out  of  the  jurisdiction  of  or  not  amen- 
able to  the  process  of  the  Court  of  Chancery,  or  if  it  be  uncertain 
whether  such  committee  be  hving  or  dead,  or  if  he  should  neglect 
or  refuse  to  transfer  such  stock  and  to  receive  and  pay  over  the 
dividends  thereof  (c)  And  the  Lord  Chancellor  is  also  empowered 
to  appoint  a  person  to  transfer  stock  standing  in  the  name  of  or 
vested  in  any  lunatic  residing  out  of  England;  and  also  to  receive 
and  pay  over  the  dividends  thereof  to  the  curator  of  such  lunatic 
or  otherwise  as  the  Lord  Chancellor  shall  think  fit.((i)  By 
*another  recent  act  it  is  provided,  that,  when  stock  shall  ,^-. 

be  standing  in  the  name  of  any  infant  or  person  of  un-  ^ 
sound  mind  jdintly  with  any  person  not  under  any  legal  disability, 
such  person  may  alone  give  a  power  of  attorney  to  receive  the 
dividends.(e)  And  generally  the  land  or  stock  of  any  lunatic,  in 
possession,  reversion,  or  expectancy,  may  be  sold  or  mortgaged 
for  the  payment  of  his  debts,  or  for  his  maintenance  and  other- 
wise for  his  benefit. (/)      • 

When  any  person  has  an  interest  in  stock  standing  in  the  name 
of  another  he  is  enabled  to  restrain  the  transfer  of  such  stock,  or, 
as  it  is  said,  to  put  a  stoj-)  ujmi  it,  by  means  of  a  writ  of  distringas, 
to  be  served  upon  the  Bank  of  England.  This  writ  appears  to  be 
in  strictness  a  proceeding  in  a  suit  supposed  to  have  been  com- 
menced by  the  party  obtaining  it  against  the  bank  and  the  legal 
owner  of  the  stock;  but  in  practice  a  suit  is  not  commenced,  un- 
less the  right  to  stop  the  stock  be  disputed. (^)  This  writ  form- 
erly issued  only  out  of  the  equity  side  of  the  Court  of  Exchequer ; 
but  when  the  equitable  jurisdiction  of  that  court  was  transferred 
to  the  Court  of  Chancery,  it  was  provided  that  a  writ  of  dtstrhigas, 

(b)  Stat.  11  Geo.  IV  &  ]  Will.  IV,  c.  65,  s.  32. 

(r)   Stat.  16  &  17  Vict.  c.  70,  a.  140.  {d)  Sect.  141. 

(e)   Stat.  8  &  9  Vict.  c.  97,  s.  3. 

(/)  Stat.  16  &  17  Vict,  c   70,  .s.  116  ;  25  &  20  Vict.  c.  86,  P.S.  12-14. 

ig)  See  Wilkinaon  on  Funds,  235-252. 


282        OF  INCORPOREAL  PERSONAL  PROPERTY. 

in  a  prescribed  form,  should  issue  out  of  the  Litter  court,  the 
force  and  effect  of  which,  and  the  practice  relating  to  the  same, 
should  be  such  as  was  previously  in  force  in  the  Court  of  Ex- 
chequer.(A)  The  writ  commands  the  sheriff'  to  distrain  the  bank 
by  their  lands  and  chattels,  so  that  they  appear  in  court  to  an- 
swer a  bill  of  complaint  lately  exhibited  against  them  and  other 
defendants  by  the  person  obtaining  the  writ.  The  object  of  the 
writ  is  stated  in  a  notice,  which  is  served  along  with  it,  to  be  for 
the  purpose  of  restraining  any  transfer  of  the  stock  *in 
L  -'  question  until  the  order  of  the  court  be  obtained.  An 
appearance  is  accordingly^  entered  by  the  bank,  and  the  transfer 
of  the  stock  is  thus  restrained.  When  the  distringas  is  required 
to  be  removed,  an  order  of  the  court  may  be  readily  obtained  for 
the  dismissal  of  the  supposed  suit.  It  is  surprising  that  a  course 
by  which  a  cestui  que  trust  of  stock  may  be  so  effectually  pro- 
tected from  any  fraudulent  transfer  by  his  trustee  should  not  be 
more  frequently  adopted. 

Stock,  being  a  kind  of  chose  in  action,  could  not  formerly  have 
been  sold  under  a,  fieri  facias  issued  in  execution  of  a  judgment 
against  the  owner.(f)^  And,  in  fact,  in  the  acts  by  which  stocks 
were  created,  it  was  declared  that  they  should  not  be  taken  in 
execution. (A-)  But  by  the  act  for  exteiiRiing  the  remedies  of  cred- 
itors against  the  propert}^  of  debtors, (r)  it  is  provided  that  any 
judge  of  one  of  the  superior  courts  of  common  law,(?n)  on  the  ap- 
plication of  any  judgment  creditor,  may  order  that  any  govern- 
ment stock  of  the  debtor  standing  in  his  own  name,  or  in  the 
name  of  any  person  in  trust  for  him,  shall  stand  charged  with 
the  payment  of  the  judgment  debt  and  interest;  and  such  order 
shall  entitle  the  judgment  creditor  to  all  such  remedies  as  he 

(/r)   Stat.  5  Vict.  c.  5,  s.  5.  (/)   Stat.  1  &  2  Vict.  c.  110,  s.  14. 

(i)   Dundas  v.  Dutens,  1  Ves.  Jun.  198.  (m)  Miles  v.  Presland,  4  Myl.  &  Cr.  431. 

(it)   Bank  of  England  v  Lunn,  15  Ves.  577. 

1  In    Maryland,    New   Jersey,    Wisconsin,  made  by  a  debtor,  after  a  judgment  obtained 

and  Pennsylvania,  stock  may  be  taken  in  exe-  against  him;  New  Dig.  Ls.  of  Ga.,  vol.  i,  p. 

cution  for  the  payment  of  debts  ;  Md.  Code,  512.     In  Ohio  the  statutes  give  certain  regu- 

p.  49,  art.  10,  §  19;  Nixon's  Dig.  Ls.  of  N.  J.  lations,   respecting  the    manner    in  which   a 

(1861)  p.  268,  §  7:  Rev.  Stats,  of  Wis.  (1858),  creditor  may  proceed  in  chancery,  against  his 

p.  787,  §  3.3  ;  Purd.  Dig.  (1861)  p.  432,  ^  12.  debtor's  equities,  stock,  ic. :  see  2  Rev.  Stats. 

In  Georgia  no  transfer  of  bank  stock  can  be  of  0.  (1861),  p.  1086,  §  458,  ka. 


OF   PERSONAL   ANNUITIES,    STOCKS,    AND    SHARES.         283 

would  have  been  entitled  to  if  such  charge  had  been  made  in  his 
favor  by  the  debtor ;  but  no  proceedings  are  to  be  taken  to  have 
the  benefit  of  such  charge  until  after  the  expiration  of  six  calen- 
dar months  from  the  date  of  such  order.(7?.)  And  by  a  subse- 
quent act  of  Parliament,(o)  this  provision  is  declared  to  extend  to 
*the  interest  of  any  judgment  debtor,  whether  in  posses-  rx^-joq-i 
sion,  remainder,  or  reversion,  and  whether  vested  or  con- 
tingent, as  well  in  such  stock  as  in  the  dividends  or  annual  pro- 
duce thereof,  and  also  to  stock  in  which  the  debtor  may  be 
interested  standing  in  the  name  of  the  accountant  general  of  the 
Court  of  Chancery.(  j^)  And  in  order  to  prevent  any  judgment 
debtor  from  disposing  of  the  stock  authorized  to  be  charged,  an 
order  may  be  procured  by  the  creditor,  in  the  first  instance  ex 
'parte^  restraining  the  Bank  of  England  from  permitting  a  transfer 
of  the  stock  until  the  order  shall  either  be  made  absolute  (that  is 
confirmed  and  continued)  or  discharged;  and  no  disposition  of 
the  judgment  debtor  in  the  meantime  is  to  be  valid  or  effectual 
as  ao-ainst  the  creditor.  And  the  order  will  be  made  absolute  if 
the  debtor  do  not,  within  a  time  mentioned  in  the  order,  show 
cause  to  the  contrary.("7)  When  the  debtor  is  entitled  to  the 
dividends  of  stock  standing  in  the  names  of  trustees,  the  order 
obtained  by  the  creditor  charging  such  dividends  will  be  binding 
on  the  trustees ;  but  the  bank  must  still  pay  the  dividends  to  the 
trustees  as  legal  owners. (r) 

The  history  of  the  law  respecting  the  transmission  of  stock  by 
will  affords  a  curious  instance  of  the  enactments  of  the  legislature 
having  been  virtually  overruled  by  the  decisions  of  the  Court  of 
Chancery.  The  acts  by  which  the  funds  were  created  provided, 
that  any  person  possessed  of  stock  might  devise  the  same  by  will 
in  writing  attested  hy  two  or  more  credible  witnesses ;  but  that  such 
devisee  should  receive  no  payment  till  so  much  of  the  will  as  re- 

(«.)  See  Watts  v.  Jefferyes,  3  Mao.  &  Gord.  372 ;  Watts  v.  Porter,  Q.  B.  1  Jur.  N.  S.  133  ; 
3  E.  &  B.  743,  E.  C.  L.  R.  vol.  77  ;  contra,  Beavan  v.  Earl  of  Oxford,  6  De  Gex,  M.  k  G. 
524,  525,  532  ;  Scott  v.  Lord  Hasting.s,  4  Kay  &  J.  633,  638. 

(o)   Stat.  3  &  4  Vict.  c.  82,  s.  1.     See  Ilulkes  v.  Day,  10  Sim.  41. 

(p)   See  Warburton  v.  Hill,  1  Kay,  470. 

{q)  Stat.  1  &  2  Vict.  c.  110,  s.  15. 

(r)  Churchill  v.  Bank  of  England.  11  Mee.  &  Wels.  323  ;  Bristead  v.  Wilkins,  3  Hare, 
235  ;  and  see  Taylor  v.  Turnbull,  4  H.  &  N.  495. 


284  OF   INCORPOREAL   PERSONAL   PROPERTY. 

luted  to  the  stock  had  been  entered  in  the  office  at  the  bank ;  and 
in  defiiult  of  such  *devise  the  stock  should  go  to  the  ex- 
"-  -"  ecutors  or  administrators.(s)  The  Court  of  Chancery, 
however,  held  that  as  stock  had  been  declared  by  Parliament  to 
be  personal  estate,  it  must,  like  all  other  personal  estate,  devolve, 
in  the  j&rst  instance,  on  the  executor  for  payment  of  debts,  even 
though  it  should  have  been  specially  bequeathed ;{/)  and  that  the 
executor,  having  it  in  his  hands  by  virtue  of  his  office  of  executor, 
was  bound  after  payment  of  debts  to  dispose  of  it  according  to  the 
will  of  his  testator,  even  although  such  will  were  unattested.(w) 
For,  previously  to  the  act  for  the  amendment  of  the  laws  with 
respect  to  wills, (a:)  a  will  of  personal  estate  required  no  attesta- 
tion. In  effect,  therefore,  a  person  was  enabled  to  bequeath  his 
stock  by  a  will  unattested.  All  wills,  however,  are  now  required' 
to  be  attested  by  two  witnesses.  And  by  a  recent  act  of  Parlia- 
ment the  provisions  of  the  old  acts,  which  had  virtually  been  dis- 
regarded, have  been  formally  repealed;  and  it  is  declared  that 
the  stock  of  a  deceased  person  may  be  transferred  by  his  executors 
or  administrators,  notwithstanding  any  specific  bequest  or  dispo- 
sition thereof  contained  in  the  will ;  but  the  bank  is  not  to  be 
required  to  allow  of  such  transfer,  or  of  the  receipt  of  any  dividend 
on  the  stock,  until  the  probate  of  the  will  or  the  letters  of  admin- 
istration shall  have  been  first  left  at  the  bank  for  registration.^ 


(s)   Stat.  1  Geo.  I,  stat.  2,  c.  19,  s.  12,  and  subsequent  acts. 

(0   Bank  of  England  v.  Moffat,  3  Bro.  C.  C.  260  ;   Bank  of  England  v.  Parsons,   5  Ves. 
665;   Bank  of  England  v.  Lunn,  15  Ves.  569. 

(?<)   Repley  v.  Waterworth,  7  Ves.  440  ;  Franklin  v.  Bank  of  England,  575,  589. 
(x)  Stat.  7  Will.  IV  &  1  Vict.  c.  26. 


1  The  assent  of  the  executor  must  be  ob-  Ch.  Decis.   162;  Christ  v.  Christ,  Admr.,  1 

tained,  before  a  legatee  can  take  possession  of  Cart.    Ind.    R.    570;    Finch    i>.    Rogers,    11 

his  legacy  ;   McClanahan's  Admr.  v.  Davis  et  Hump.  R.  559.     And,  if  an   executor  refuses 

al.,  8   How.  R.  170  ;  Rea  v.  Rhodes,  5  Ired.  to  assent  to  a  legacy  without  adequate  cause, 

Eq.  R.  148  ;  Nunn  v.  Owens,   2   Strobh.  R.  the  legatee  may  come  into  equity  to  compel 

101  ;  Hudson,  Exr.,  v.  Reeve,   1   Barb.  Sup.  an  assent;  Vaughan  v.  Vaughan,  .30  Ala.  R. 

Ct.  R.  89  ;  in  which  last  case  it  was  held,  that  .329  ;  Lewis  v.  Darling,  16  How.  (U.  S.)  R.  1. 

where  the  executrix  and  legatee  are  the  same  But  the  consent  of  the  executor  may  be  im- 

person,  the  executrix,  as  such,  might  assent  plied  from  the  nature  of  the  circumstances; 

to  the  legacy  to  herself,  and  that  assent  would  Squires   et   ux.    v.    Old,    7    Hump.  R.    454; 

vest  the  title  in  her;   and  this  is  true  also  of  Hall  v.  Hall,  27  Miss.  R.  458  ;  and  the  assent 

specific  legacies  ;  West  v.  Smith  et  al.,  8  How.  of  an  executor  to  the  bequest  of  a  life  estate, 

R.  411  ;  Lark  et  al.  v.  Linstead  et  al.,  2  Md.  operates  as  to  the  bequest  of  the  remainder 


OF   PERSONAL   ANNUITIES,    STOCKS,    AND    SHARES.         285 

And  the  bank  may  require  all  the  executors  who  shall  have 
proved  the  will  to  concur  in  the  transfer.(^)  And  the  registry  of 
specific  bequests  of  stock  is  no  longer  required,  but  merely  the 
registry  of  the  names  of  the  deceased  party,  and  of  his  executors 
and  administrators.  (2) 

*The  next  kind  of  incorporeal  personal  property  which  r*-.Q^-| 
we  shall  mention  are  shares  in  joint  stock  companies. 
Joint  stock  companies  were  formerly  of  two  kinds,  those  which 
were  incorporate,  or  made  into  corporations,  and  those  which  were 
not  so. 

Corporations  are  legal  personages,  always  known  by  the  same 
name,  and  preserving  their  identity  through  a  perpetual  succes- 
sion of  natural  persons.  They  are  either  corporations  sole,  com- 
posed only  of  one  person,  such  as  a  bishop,  a  parson,  or  the  cham- 
berlain of  London  ;  or  corporations  aggregate,  composed  of  many 
persons  acting  on  all  solemn  occasions  by  the  medium  of  their  com- 
mon seal;{a)  and  it  is  of  such  corporations  that  we  are  now  about 
to  speak.  Such  corporations  may  be  created  either  by  charter  con- 
ferred by  the  Queen's  letters-patent,  or  by  act  of  Parliament.^  And, 

(y)  Stat.  8  &  9  Vict.  c.  97,  s.  1. 

(z)  Sect.  2. 

{a)  See  Bac  Abr.,  tit.  Corporations  ;  1  Black.  Com.  ch.  18. 


over,   so   that  no   new  assent   is  necessary;  called  upon  to  account,  sold  the  bank  stock, 

Thrasher  v.  Ingram,  32  Ala.  R.  645  ;  Hotch-  and  paid  over  the  proceeds,  $1460.34,  to  the 

kiss  V.  Thomas,  6  Jones's  L.  R.  537 ;  Gay  v.  duly   authorized   agent    of    the   beneficiary. 

Gay,  29  Ga.  R.  549  ;  and  when  once  given  can-  which  he  received  as  and  for  the  $1000  legacy, 

not  be  retracted;  Rossis.  Davis,  17  Ark.  R.  the  stock  having  been  sold  with  his  knowledge 

113  ;  but  the  assent  is  no  waiver  of  his  right  and  as.sent ;  it  was  held,  that  as  there  was  no 

to  a  refunding  bond  ;  Nelson  v.  Cornwell,  11  evidence  that  the  legatee  was  advised  of  the 

Gratt.  R.  724  ;  and  see,  also,  Rea  v.  Rhodes-,  purchase  of  the  bank  stock,  or  ever  assented 

5  Ired.   Eq.  R.  148  ;  White  v.  White,  4  Dev  to  it,  the  executor  had   a  right  to  sell  the 

R.  257  ;  Gums  v.  Capehart,  5  Jones's  Eq.  R.  stock  and  pay  over  the  proceeds,  for  the  stock 

242  ;  Suggs   V.  Sapp,  20  Ga.  R.  100.  did  not  belong  to  the  legatee,  and  the  execu- 

In  the  case  of  Norman  et  ux.  v.  Storer  et  tor  was  guilty  of  no  conversion  or  wrong  in 

al.,  1  Blatch.  C.  C.  R.  593,  where  $1000  was  selling  it. 

given  to  a  legatee  by  will,  the  money  to  be       '  In  the  United   States,   corporations  are 

raised  out  of  the  testator's  estate,  and  paid  created   in  all  cases,  under  the  authority  of 

over  to  the   legatee,   and   the  executor  and  Acts  of  Congress,  or  of  Acts  of  Assembly, 

trustee   under    the   will    having    rai.sed    the  These  may  be  general  or  special  acts.     The 

money,  instead  of  paying  it  as  required,  pur-  former  confer  authority   on  courts   to  grant 

chafjed  bank  stock  with  it,  in  his  own  name,  charters   in  designated  cases,  or  allow  indi- 

in  trust  for  the  legatee  ;  and  afterwards,  when  viduais  when  associated  together,  to  incor- 


286        OF  INCORPOREAL  PERSONAL  PROPERTY. 

till  a  few  years  ago,  all  joint  stock  companies  which  had  not  ob- 
tained tliis  ex]^)ensive  sanction  were  in  fact  private  partnerships 
on  an  extended  scale.  In  the  present  reign,  however,  as  we  shall 
hereafter  see,  provision  has  been  made  for  the  incorporation  of 
all  public  joint  stock  companies  ;(6)  but  such  companies  as  are 
incorporated  by  letters-patent  or  special  act  of  Parliament  still 
enjoy  peculiar  privileges.  These  companies  therefore  first  re- 
quire notice. 

The  nature  and  incidents  of  shares  in  the  joint  stock  of  compa- 
nies incorporated  by  letters-patent  or  act  of  Parliament  have 
generally  been  determined  by  their  respective  charters  or  acts  of 
incorporation.  And  in  the  great  majority  of  cases,  and  in  all  the 
i-^  modern  charters  *and  acts  of  incorporation,  the  shares  are 

'-  -'  declared  to  be  personal  estate,  and  transmissible  as  such. 
In  a  few  of  the  older  companies,  of  which  the  New  Eiver  Com- 
pany is  an  instance, (c)  the  shares  are  real  estate  in  the  nature  of 
incorporeal  hereditaments.  For  the  future,  however,  all  the 
provisions  contained  in  special  acts  for  the  incorporation  of  joint 
stock  companies  will,  as  far  as  possible,  be  the  same.  For  an 
act  of  Parliament  has  been  passed  "  for  consolidating  in  one  act 
certain  provisions  usually  inserted  in  acts  with  respect  to  the  con- 
stitution of  companies  incorporated  for  carrying  on  undertakings 
of  a  public  nature. "((iy     Other  acts  have  also  been  passed  for 

{b)  Stat.  7  &  8  Vict.  c.  110  ;  partly  repealed  by  stat.  20  &  21  Vict.  c.  U,  s.  23  ;  7  &  8 
Vict.  c.  113  ;  partly  repealed  by  stat.  20  &  21  Vict.  c.  49  ;  all  now  repealed  by  the  Compa- 
nies' Act,  1862,  stat.  25  &  26  Vict.  c.  89. 

(c)  Drybutter  t?.  Bartholomew,  2  P.  Wms.  127. 

(d)  Stat.  8  &  9  Vict.  c.  16  ;  extended  by  stat.  26  &  27  Vict.  c.  118. 

porate  themselves  by  pursuing  certain  form-  Ls.  of  N.  J.  (1861),  pp.  151  to  156  ;"2  Revis. 

alities.  Special  acts  of  incorporation,  whether  Stats,  of  N.  Y.  (1859),  pp.  476  to  825  ;  Revis. 

of  Congress  or  of  Assembly,  either  themselves  Stats,  of  Vt.  (1839),  378  to  394  j  1  Matthew's 

create  the  corporations,  or  authorize  the  ex-  Dig.   of  Ls.  of  Va.  (1866),  pp.  421  to  433; 

ecutive,  on  compliance  with  certain  stipulated  Purd.  Dig. (1861),  pp.  194  to  202.  Andstatutes 

conditions,  by  the  persons  who  desire  to  be  in-  analagous  to  the  8  &  9  Viet.  c.  16,  s.  4,  Ac, 

corporated,  to  issue  to   such  persons  letters-  are  not  unusual  in  this  country  ;  New  Dig.  Ls. 

patent  of  incorporation.  of  Georgia  (1851),  by  T.  R.  R.  Cobb,  vol.  xi, 

1  The  respective  codes  of  several  of  the  431  to  434;  Stats,  of  S.  C  .,  vol.  vi,  302  to 

States,    contain    general   provisions   relative  306.     The   Manufacturing  Companies'    Act, 

to  all  corporations  ;  Thomps.  Dig.  of  the  Ls.  Purd.  Dig.  (1861),  pp.  689  to  696  ;  and  Purd. 

of    Florida,   268    to  284  ;    Revis.    Stats,    of  Dig.    Suppl.   (1864),  pp.  1347  to   1351  ;  The 

Mass.  (1860),  pp.  384  to  389  ;  2  Compiled  Ls.  Turnpike  Bridge  and  Plank  Road  Companies 

Michigan  (1867),  pp.  699  to  706  ;  N.  H.  Com-  Act,  Purd.  Dig.  (1801),  pp.  979  to  988  ;  The 

piled  Stats.  (1853),  310  to  374  ;  Nixon's  Dig.  Railroad  Companies  Act,  lb.  835  to  850. 


r 


OF   PERSONAL   ANNUITIES,    STOCKS,    AND    SHARES.         287 

consolidating  certain  provisions  usually  inserted  in  acts  author- 
izing the  taking  of  lands  for  undertakings  of  a  public  nature  ;(t') 
in  authorizing  the  making  of  railways ;(/)  in  acts  for  construct- 
ing or  regulating  markets  and  fairs  ;(^)  in  acts  authorizing  the 
making  of  gasworks  for  supplying  towns  with  gas  ;(A)  or  of  water- 
works for  supplying  towns  with  water  ;(i)  in  acts  for  the  making 
and  improving  of  harbors,  docks,  and  piers  ;(^)  in  acts  for  paving,  ^ 
draining,  cleansing,  iglhting,  and  improving  towns  \il)  and  in  acts 
authorizing  the  making  of  cemeteries.(w)  In  each  of  these  acts 
enactments  are  made  with  respect  to  various  matters  usually  con- 
tained in  acts  of  incorporation  for  the  above  purposes;  and  it  is 
provided  that  the  clauses  and  provisions  of  these  general  acts, 
save  so  far  as  they  shall  be  expressly  varied  or  excepted  by  any 
special  act,  shall  apply  to  every  undertaking  which  shall  there- 
after *be  authorized  by  act  of  Parliament  for  any  of  the  r;i,-|QQ-i 
purposes  above  referred  to.  A  uniformity  is  thus  given  to  ^ 
the  constitution  of  such  companies,  and  the  length  of  the  acts  of 
Parliament  required  to  establish  them  has  been  greatly  dimin- 
ished. A  short  title,  for  the  convenience  of  reference,  is  given 
to  each  act.  The  act  first  mentioned  is  called  "  The  Companies' 
Clauses  Consolidation  Act,  1845, "(?z)  and  all  the  others  have 
similar  titles. 

The  Companies'  Clauses  Consolidation  Act^  contains  pro^dsions 
with  respect  to  the  distribution  of  the  capital  of  the  company 

(e)   Stat.  8  &  9  Vict.  c.  18  ;  extended  by  stat.  23  &  24  Vict.  c.  106. 

(/)  Stat.  8  &  9  Vict.  c.  20  ;  extended  by  stat.  26  &  27  Vict.  c.  92. 

(g-)   10  &  11  Vict.  c.  14. 

(/«)   Stat.  10  k  11  Vict.  c.  15. 

(i)  Stat.  10  &  11  Vict.  c.  17 ;  extended  by  stat.  26  A  27  Vict.  c.  93. 

{Ic)  Stat.  10  &  11  Vict.  c.  27.  (w)  Stat.  10  &  11  Vict.  c.  65.  • 

{I)  Stat.  10  &  11  Vict.  0.  34.  (w)  Stat.  8  &  9  Vict.  c.  16,  s.  4. 

1  In  the  preceding  page,  a  reference  has  for  manufacturing  purposes,  and  the  like.  The 

been    made    to    several    acts,    analogous    to  advantage  of  these  enactments  is  found  in  the 

the  "Companies'  Clauses  Consolidation  Act,"  fact,  that  they  form  a  general  law,  applicable 

and  "the    act  for    the     registration,    incor-  to  all  corporations  falling  under  the  class  to 

poration,  and  regulation  of  joint  stock  com-  which   they  relate,  and  as  such   are  drafted 

panies,"  and  among  others,  to  the   Pennsyl-  witli   more  care,   and  more  thoroughly  con- 

vania  Turnpike  Act,  and  the  Manufacturing  sidered  than   private   bills  of  incorporation, 

Companies  Act,   of  the   same   State.      Some  whereby  many  of  the  dangers  resulting  from 

of  these  acts    are  not  entirely    general,   but  hasty  legislation  are  avoided, 
relate   to   certain   kinds   of   corporations,   as 


288  OF   INCORPOREAL   PERSONAL   PROPERTY. 

into  sliares,  which  are  to  be  personal  estate,  and  transmissible 
as  such  ;(o)  with  respect  to  the  transfer  of  shares,  which  must  be 
by  deed  duly  stamped,  in  which  the  consideration  shall  be  truly 
stated, (7))  and  which  cannot  take  place  until  the  transferror  shall 
have  paid  all  calls  for  the  time  being  due  on  every  share  held  by 
him;(^^)  with  respect  to  the  transmission  of  shares  by  will,  intes- 
tacy, marriage  of  a  female,  &c.  ;(r)  with  respect  to  the  payment  of 
calls,(5)  which  may  be  made  payable  by  instalmeuts,(/)  and  the 
forfeiture  of  shares  for  nonpayment  of  calls  ;(c/)  with  respect  to 
the  remedies  of  creditors  of  the  company  against  the  sharehold- 
er8,(t')  which  are  confined  to  the  extent  of  their  shares  in  the 
capital  of  the  company  not  then  paid  up,  and  may  be  exercised 
only  in  case  there  cannot  be  found  sufficient  property  or  effects 
of  the  company  whereon  to  levy  execution  ;(w)  with  respect  to  the 
r*iQj.i  ^borrowing  of  money  by  the  company,(a:)  the  conversion 
^  -'of  the  borrowed  money  into  capital,(?/)  the  consolidation 
of  the  shares  into  stock,(z)  general  meetings,(a)  the  appointment 
and  rotation  of  directors, (6)  the  powders, (c)  proceedings  and  liabili- 
ties of  the  directors, (c?)  the  appointment  and  duties  of  auditors,(e) 
the  accountability  of  the  olficers  of  the  company,(/)  the  keeping 
of  accounts,(^)  the  making  of  dividends,(A)  and  of  by-laws, (/)  the 
settlement  of  disputes  by  arbitration, (^)  the  giving  of  notices, (^) 
the  recovery  of  damages  and  penalties,(?w)  and  appeals  with  respect 
to  such  damages   or  penalties  to  the  quarter  sessions  ;(w)   and 

(o)   Sect.  7.  (;;)   Sect.  14. 

{g)  Sect.  16;  Hall  v.  Norfolk  Estuary  Company,  Q.  B.  1(5  Jiir.  149;  Regina  v.  London- 
derry and  Coleraine  Railway  Company,  13  Q.  B.  998,  E.  C.  L.  R.  vol.  66. 

(;■)   Sects.  18,  19. 

(s)   Sects.  21-28.     See  Wolverhampton  New  Waterworks  Company  v.  Hawkesford,  6  C. 
B.  N.  S.  336,  E.  C.  L.  R.  vol.  95. 
0(f)  Aiubergate,  <fec.  Railway  Company  v.  Norclifife,  6  Ex.  Rep.  629. 

(?<)   Sects.  29-35. 

(V)   Sect.  36. 

{w)  Devereux  V.  Kilkenny,  &c.  Railway  Company,  5  Ex.  Rep.  834  ;  Hitchkin.?  v.  Kilkenny, 
Ac.  Railway  Company,  10  C.  B.  160,  E.  C.  L.  R.  vol.  70  j  Nixon  v.  Brownlow,  3  H.  &  N. 
686. 

{x)  Stat.  8  &  9  Vict.  c.  16,  s.  38-55.  (/)   Sects.  109-114. 

(y)   Sects.  56-60.  (g)  Sects.  115-119. 

(z)   Sects.  61-64.  (A)  Sects.  120-123. 

(a)  Sects.  66-80.  (i)  Sects.  124-127. 

(A)  Sects.  81-89.  {k)  Sects.  128-134. 

{c)  Sects.  90,  91.  (/)   Sects.  135-139. 

(/I)  Sects.  92-100  (m)  Sects.  142-158. 

(e)   Sects.  101-108.  (w)   Sects.  159,  160. 


OF   PERSONAL   ANNUITIES,    STOCKS,    AND    SHARES.         289 

lastly,  with  respect  to  affording  access  to  the  special  act  by  all 
parties  interested,(5')  The  provisions  of  the  other  acts  are  not  of 
a  nature  to  require  enumeration.  By  a  recent  act  of  Parliament 
provision  has  been  made  for  the  exoneration  from  stamp  duty  of 
transfers  of  bonds  and  mortgages  given  by  public  companies  for 
money  which  by  their  acts  of  Parliament  they  may  be  authorized 
to  borrow,  on  the  original  bond  or  mortgage  being  stamped  in 
the  first  instance  with  three  times  the  amount  of  the  ad  valorem 
duty  over  and  above  such  duty.(r) 

Joint  stock  companies  which  had  not  obtained  letters  patent  or 
special  acts  of  incorporation  were  formerly  subjected  to  very  great 
inconvenience  whenever  they  had  occasion  to  take  legal  proceed- 
ings against  any  *person  who  happened  to  be  a  share-  i-^jj-jqr-i 
holder.  And  every  shareholder  in  such  companies  was 
subject  to  the  like  inconvenience  whenever  he  had  occasion  to 
proceed  against  the  company.  For  such  a  company,  however  ex- 
tensive, was  in  law  merely  a  partnership ;  and  a  partner  who  owes 
money  to  the  partnership  of  which  he  is  a  member,  evidently 
owes  a  portion  of  it  to  himself,  according  to  his  interest  in  the  joint 
stock;  and  in  like  manner  a  partner  who  is  a  creditor  claims  part 
of  his  demand  against  himself.  In  each  case,  therefore,  an  ac- 
count must  be  settled  before  the  exact  debt  or  credit  of  the  part- 
ner can  be  a8certained.(5')  In  order  to  obviate  the  diificulties 
which  thus  arose,  many  joint  stock  companies  obtained  special 
acts  of  Parliament,  enabling  them  to  sue  and  be  sued  in  the  name 
of  some  ofiicer.  And  an  act  of  Parliament(<)  was  passed  empow- 
ering the  crown  to  grant,  by  letters-patent,  charters  to  companies 
for  any  trading  or  other  purposes  whatsoever,  which,  without  in- 
corporating such  companies,  would  empower  them  to  sue  and  be 
sued  in  the  name  of  some  ofiicer  appointed  and  registered  for  the 
purpose.  This  act  is  still  in  force,  and  it  contains  a  valuable  pro- 
vision, empowering  the  crown  to  limit,  by  the  letters-patent,  the 
liability  of  the  individual  members  of  the  company  for  its  engage- 
ments to  a  given  extent  per  share.(M)    Banking  companies,  whose 

(fj)  Sects.  IGl,  162.  (r)  Stat.  16  &  17  Vict.  c.  59,  s    14. 

(s)   See  Richardson  v.  Bank  of  England,  4  My.  &  Cr.  165. 

(0   Stat.  7  Will.  IV,  &,  1  Vict.  c.  73,  repealing  a  former  statute  for  a  similar  purpose,  4 
A  5  Will.  IV.  c.  94. 
(u)  Sect.  4. 

19 


290  OF   INCORPOREAL   PERSONAL    PROPERTY. 

shareholders  are  generally  their  customers,  were  peculiarly  sub- 
ject to  the  inconvenience  above  referred  to  in  suing  and  being 
sued.  Accordingly,  by  modern  statutes, (3:)  all  such  banking  com- 
panies as  consisted  of  more  than  six  members  were  allowed  to  ap- 
r*iQ«i  P*^^^^^  some  public  officer  who  must  sue  and  be  sued  *on 
^  -'  behalf  of  the  company.(?/)  More  recently,  however,  two 
acts  of  Parliament  were  passed,  the  one  incorporating  public  joint 
stock  companies,  the  other  for  providing  for  the  incorporation  of 
joint  stock  banks.     Each  of  these  acts  requires  some  notice. 

The  first  act  was  entitled  "  An  Act  for  the  Registration,  Incor- 
poration, and  Regulation  of  Joint  Stock  Companies."(z)  This 
act  applied  to  every  joint  stock  company  established  for  any  com- 
mercial purpose,  or  for  any  purpose  of  profit,(«)  or  for  the  purpose 
of  insurance  (except  banking  companies,  schools,  and  scientific 
and  literary  institutions,  and  friendly,  loan,  and  benefit  building 
societies  duly  certified  and  enrolled  under  the  statutes  in  force 
respecting  such  societies)  ;(6)  and  the  term  "joint  stock  com- 
pany" comprehended  every  partnership  whereof  the  capital  was 
divided  or  agreed  to  be  divided  into  shares,  and  so  as  to  be  trans- 
ferable without  the  express  consent  of  all  the  copartners;  and 
also  every  insurance  company,  whether  of  lives,  ships,  or  against 
fire  or  storm ;  and  every  company  for  granting  or  purchasing  an- 
nuities on  lives ;  and  every  friendly  society  insuring  to  an  amount 
not  exceeding  200^.  upon  one  life  or  for  any  one  person  ;  and  also 
every  partnership  which  at  its  formation,  or  by  subsequent  ad- 
mission (except  any  admission  consequent  on  devolution  or  other 
act  of  law),  should  consist  of  more  than  twenty-five  members. 
But  the  act  did  not  apply  to  companies  incorporated  by  statute 
or  charter,  nor  to  companies  authorized  to  sue  and  be  sued  in 
the  name  of  some  officer  or  person.(c)     This  act,  however,  has 

It  provided  for  *the  establish- 
in  which  the  name  and  business 


r*iQ7l   ^^^^^  been  repealed.(i/) 
ment  of  a  registry  office, 


(x)  Stat.  7  Geo.  IV,  c.  4G,  s.  9  et  seg.  ;  1  &  2  Vict.  c.  96  ;  extended,  3  &  4  Vict.  c.  Ill  ; 
made  perpetual,  5  &  6  Vict.  c.  85. 

(y)  Chapman  v.  Milvain,  5  Ex.  Rep.  61 ;  Steward  v.  Greaves,  10  Mee.  &  Wels.  711. 

(«)  Stat.  7  i  8  Vict.  c.  110,  amended  by  stat.  10  &  11  Vict.  c.  78. 

{a)  See  The  Queen  v.  Whitmarsh,  15  Q.  B.  600,  E.  C.  L.  R.  vol.  80  ;  Bear  v.  Bromley, 
21  L.  Jour.  Q.  B.  354  ;  18  Q.  B.  271,  E.  C.  L.  R.  vol.  86. 

(4)  See  post,  pp.  209-212.  (d)   Stat.  25  &  26  Vict.  c.  89. 

(c)   Sect.  2. 


OF    PERSONAL   ANNUITIES,    STOCKS,    AND   SHARES.         291 

of  every  projected  company,  together  witli  the  names,  occupa- 
tions, and  places  of  husiness  and  residence  of  the  promoters  of 
the  company,  were  required  to  be  registered  before  they  could 
proceed  to  make  public,  whether  by  way  of  prospectus,  handbill, 
or  advertisement,  any  intention  or  proposal  to  form  the  com- 
pany.(e)  Further  particulars  were  also  to  be  registered  as  they 
should  be  decided  on  from  time  to  time.(/)  This  registration, 
however,  only  enabled  the  company  to  act  provisionally,  and  it 
was  therefore  termed  provismml  registration.  And  before  the  com- 
pany could  act  otherwise  than  provisionally,  it  was  required  to 
obUiin  a  certificate  of  complete  registration.  This  certificate  could 
onl}'  be  obtained  on  production  of  a  deed  of  settlement  of  the 
company,  according  to  the  form  set  forth  in  the  act,  signed  by  at 
least  one-fourth  in  number  of  the  persons  who  at  the  date  of  the 
deed  had  become  subscribers,  and  who  should  hold  at  least  one- 
fourth  of  the  maximum  number  of  shares  in  the  capital  of  the 
company. (^)  This  deed  was  required  to  be  certified  by  two  direc- 
tors of  the  company  in  a  given  form  ;  and  along  with  it  was  to  be 
produced  a  complete  abstract  or  index  of  the  deed,  together  with 
a  copy  of  it  for  registration.  Provision  was  also  made  for  the 
registration,  half-yearly  or  ofteuer,  of  all  transfers  of  shares,  and 
of  changes  in  the  names  of  the  shareholders,(A)  and  for  an  annual 
return  of  the  name  and  business  of  every  company.(z)  On  com- 
plete registration  being  certified  the  company  became  incor2'>o- 
rated{k)  as  from  the  date  of  the  certificate,  by  the  name  of  the 
company  as  set  forth  in  the  deed  of  ^settlement,  with 
power  to  have  a  common  seal,  but  on  which  was  to  be  '-  -' 
inscribed  the  name  of  the  company,  and  with  other  powers  neces- 
sary to  the  conduct  of  their  affairs, (^)  including  a  power  to  hold 
lands  on  obtaining  a  license  for  that  purpose  from  the  Board  of 
Trade. (m)  Provision  was  also  made  for  the  registry  of  joint  stock 
comjjanies  then  existing,  and  for  the  alteration  of  their  deeds  of 

(e)  Stat.   7  &  8  Vict.  c.  110,   s.  4.     See,  also,  stat.  10  &  11  Vict.  c.   78,  s.   7  ;  Abbott  v. 
Rogers,  C.  P.  1  Jur.  N.  S.  804;   16  C.  B.  277,  E.  C.  L.  R.  vol.  81. 
(/)  Stat.  7  4  8  Vict.  c.  110,  s.  4  ;   10  &  11  Vict.  c.  78,  ss.  4,  5,  6. 
(g)  Stat.  7  &  8  Vict.  c.  110,  s.  7. 
(A)  Sects.  11-13. 
(i)    Sect.  14. 

(X)   Banwen  Iron  Company  v.  Barnett,  8  C.  B.  406,  E.  C.  L.  R.  vol.  65. 
{I)    Stat.  7  <fe  8  Vict.  c.  110,  s.  2,'j. 
(to)  Stat.  10  &  11  Vict.  c.  78,  ss.  1,  2,  .3. 


292        OF  INCORPOREAL  PERSONAL  PROPERTY. 

settlement  in  order  to  comply  with  the  provisions  of  the  act.{n) 
The  triinsfer  of  shares  was  required  to  he  effected  hy  deed  in  a 
given  form,  to  be  duly  stamped,  au<l  in  which  the  full  amount 
of  the  pecuniary  consideration  for  the  sale  was  to  he  truly  cx- 
pressed.(o)  But  no  sale  or  mortgage  of  any  share  was  valid  until 
the  company  had  obtained  a  certificate  of  complete  registration 
and  the  subscriber  had  been  duly  registered  as  a  shareholder  in 
the  registry  office ;(;))  and  no  transfer  could  he  made  if  the  trans- 
ferror should  not  then  have  paid  up  the  full  amount  due  to  the 
company  on  every  share  held  by  him,  unless  there  were  a  pro- 
vision to  .the  contrary  in  the  deed  of  settlement.((7)'  Shareholders 
in  these  companies  were  liable  to  the  creditors  of  the  company,  if 
such  creditors  had  used  due  diligence  to  obtain  satisfaction  by 
execution  against  the  property  of  the  company;  but  after  the  ex- 
piration of  three  years  next  after  any  person  should  have  ceased 
to  be  a  shareholder,  his  liability  ceased.(?') 

The  act  which  provided  for  the  incorporation  of  banking  com- 
panies was  entitled  "  An  Act  to  regulate  Joint  Stock  Banks  in 
England."(5)     This  act  has  now  been  repealed.(^)     The  incorpo- 

^^^^^-,  ration  effected  under  the  *provision8  of  this  act  was  by 

r  1991  •  • 

'-        -^  letters-patent,  obtained,  on  petition,  from  the  crown.    The 

petition  was  referred  to  the  Board  of  Trade,  on  whose  report  a 
charter  was  granted  to  the  company(w)  for  a  term  not  exceeding 
twenty  years.(a:)  Other  provisions  were  also  made  for  the  regis- 
tration of  the  company,  the  transfer  of  shares,  the  liability  of 
shareholders,  and  other  matters  which  it  is  now  unnecessary  to 
state.^ 

(w)  Sects.  58,  59.  (p)  Sect.  26.    Ex  parte  Neilson,  3  De  Gex,  M.  A  Q.  556. 

(o)   Sect.  54.  {q)   Sect.  54. 

(r)   Sects.  66-68.     Greenwood's  Case,  3  De  Gex,  M.  &  Q.  459,  478  ;  S.  C.  18  Jur.  387. 

(s)  Stat.  7  A  8  Vict.  c.  113.  («)   Stat.  7  &  8  Vict.  c.  113,  s.  3. 

(()   Stat.  25  &  26  Vict.  c.  89.         {x)  Sect.  6. 

1  Most  of  the  charters  of  incorporation  in  '■^  By  the  laws  of  Pennsylvania,  any  num- 

the  United  States,  contain  a  clause  enacting,  ber  of  persons  not  less  than  five,  associating 

that  the  shares  thereof  shall  only  be  trans-  together    under   the   rules    and   regulations, 

ferred  on  the  books  of  the  institution.     This  prescribed   by  the  act  of  the  legislature  of 

is,   in  general,  effected   by  a  brief  letter  of  that  State,  passed  May  1,  1861,  and  known 

attorney,  signed   by  the  owner  of  the  stock,  as  the  Banking  Companies  Act,  may  become  a 

in  the  presence  of  a  witness,  and  directed  to  body   corporate,    for   the    period    of   twenty 

an  officer  of  the  bank,  or  in   blank,  author-  years.     Purd.  Dig.  (1861),  p.  78,  &c. 
izing  him  to  transfer  to  the  vendee. 


OF    PERSONAL   ANNUITIES,    STOCKS,    AND    SHARES.         293 

The  main  object  of  the  two  statutes  above  referred  to  was  evi- 
dently to  give  publicity  to  the  names  of  the  real  promoters  and 
shareholders  of  joint  stock  companies,  so  that  the  public  might 
know  with  whom  they  were  dealing,  and  that  those  who  reaped 
the  benetit  of  such  undertakings  might  also  bear  their  proper 
share  of  the  risk.  Another  object  was  to  recognize,  as  legal  per- 
sonages, bodies  which  before  had  a  legal  existence,  but  had  no 
convenient  means  of  acting  or  of  being  acted  on.  In  the  same 
spirit  another  act  of  Parliament  was  passed  in  the  same  session, 
"  for  facilitating  the  winding  up  the  affairs  of  joint  stock  compa- 
nies unable  to  meet  their  pecuniary  engagements. "(?/)  By  this 
act  all  incorporated  or  privileged  companies  for  any  commercial 
or  trading  purposes,  including  banking  companies, (z)  and  also  all 
joint  stock  companies  within  the  definition  contained  in  the  act 
for  their  incorporation, (a)  were  made  liable  to  bankruptcy  in  the 
same  manner  as  private  individuals ;  but  the  bankruptcy  of  the 
company  was  not  to  be  construed  to  be  the  bankruptcy  of  any 
member  of  the  company  in  his, individual  capacity.(6)  This  act, 
however,  was  almost  entirely  superseded  by  the  "  Joint  Stock 
Companies  Winding  up  Act,*1846, "((-')  as  amended  by  the  r^i^f^r.-, 
"Joint  Stock  Companies'  Winding-up  Amendment  Act,  L  *^  J 
1849, "(ol')  under  which  an  official  manager  was  appointed,  and  a 
list  of  contributories  made  out,  on  whom  calls  were  made  from 
time  to  time  for  payment  of  the  debts  and  liabilities  of  the  com- 
pany. These  acts  again  did  not  apply  to  companies  registered 
under  the  "Joint  Stock  Companies  Act,  1856, "(e)  by  which  act, 
as  several  times  amended,(/)  joint  stock  companies  were  reg- 
ulated, until  the  passing  of  the  "  Companies  Act,  1862. "(^)  This 
act  has  repealed  and  consolidated  all  the  former  acts  relating  to 
joint  stock  companies. 

(y)  Stat.  7  &  8  Vict.  c.  Ill,  amended  by  stat.  20  &  21  Vict.  c.  78. 

(z)  Stat.  7  A  8  Vict.  c.  113,  s.  48. 

(a)   Stat.  7  &  8  Vict.  c.  110,  s.  2  ;  a7ite,  p.  196. 

(A)  Stat.  7  &8  Vict.  c.  HI,  s.  2. 

(r)  Stat.  11  &  12  Vict.  c.  45. 

(d)  Stat.  12  &  1.3  Vict.  c.  108,  amended  by  stat.  20  &  21  Vict.  c.  78  ;  and  see  as  to  Rail- 
ways, Stat.  13  A  14  Vict.  c.  83. 

(«)  Stat.  19  &.  20  Vict.  c.  47,  s.  108. 

(/)  Stat.  20  A  21  Vict.  c.  14  ;  20  A  21  Vict.  c.  49  ;  21  A  22  Vict.  c.  60  ;  21  A  22  Vict, 
c.  91. 

iff)  Stat.  25  A  26  Vict.  c.  89. 


•294        OF  INCORPOREAL  PERSONAL  PROPERTY. 

An  act  of  Parliament  was  passed  in  1855  for  limiting  the  liabil- 
ity of  members  of  certain  joint  stock  companies.(A)  Under  this 
act  any  joint  stock  company  to  be  formed  under  the  act  7  &  8 
Vict.  c.  110,  other  than  an  assurance  company,  with  a  capital  to 
be  divided  into  shares  of  a  nominal  value  of  not  less  than  101. 
each,  might  obtain  a  certificate  of  complete  registration  with 
limited  liability,  upon  complying  with  certain  conditions.  With 
reference  to  this  act  it  was  remarked  in  the  third  edition  of  the 
present  work,(f)  that  it  seems  that  all  that  can  now  be  expected 
of  an  act  of  Parliament  is  to  introduce  a  principle  to  be  worked 
out  by  subsequent  amendments;  and  that  it  was  to  be  hoped  that 
the  principle  of  limited  liability  then  introduced  might  by  some 
future  act  be  both  more  widely  extended  and  more  accurately 
applied.  This  was  afterwards  done  by  the  Joint  Stock  Com- 
panics  Acts,  1856(A')  and  *1857,(?)  and  the  Joint  Stock 
^  -^  Banking  Companies  Act,  1857, (m)  as  amended  by  subse- 
quent acts,(n)  all  of  which  are  now  repealed  and  consolidated  by 
the  Companies  Act,  1862.(o) 

Under  this  act  seven  or  more  persons  associated  for  any  lawful 
purpose,  may  by  subscribing  their  names  to  a  memorandum  of 
association,  and  otherwise  complying  with  the  requisitions  of  the 
act  in  respect  of  registration,  form  an  incorporated  company,  with 
or  without  limited  liability. (/>)'  But  no  banking  company  claim- 
ing to  issue  notes  in  the  United  Kingdom  shall  be  entitled  to 
limited  liability  in  respect  of  such  issue. (g)  Not  more  than  ten 
persons  may  carry  on  the  business  of  banking  as  partners,  unless 
they  are  registered  under  this  act,  or  are  formed  in  pursuance  of 
some  other  act  of  Parliament  or  of  letters-patent;  and  no  partner- 
ship consisting  of  more  than  twenty  persons  can  now  be  formed 

{k)  Stat.  18  &  19  Vict.  c.  1.33.  (/)  Stat.  20  &  21  Vict.  c.  14. 

(i)   Pp.  182,  183.  (w)  Stat.  20  &  21  Vict.  c.  49. 

(Jc)  Stat.  19  &  20  Vict.  c.  47. 

(w)   Stat.  20  &  21  Vict.  c.  80  ;  21  &  22  Vict,  c  60  ;  21  &  22  Vict.  c.  91. 

(o)   Stat.  25  &  26  Vict.  c.  89.  (q)  Sect.  182. 

{p)  Sect.  6. 

1  The  liability  of  the  stockholders  "of  in-  erally  limited,   either  upon  the  amount   the 

corporations  is  in   general  regulated  by  the  stockholder  has  subscribed,   or   the  amount 

charter,  or  the  general  laws  under  which  the  he  has  actually  paid  up  towards  the  capital 

incorporation  has  come  into  existence  ;  this  stock  of  the  corporation, 
liability  is  sometimes  absolute ;  but  most  gen- 


OF   PERSONAL   ANNUITIES,    STOCKS,    AND    SHARES.         295 

for  the  purpose  of  carrying  on  any  other  business  that  has  for  its 
object  the  acquisition  of  gain  by  the  partnership  or  by  the  in- 
dividual members  thereof,  unless  it  be  registered  as  a  company 
under  this  act,  or  be  formed  in  pursuance  of  some  other  act  of 
Parliament,  or  of  letters-patent,  or  be  a  company  engaged  in 
working  mines  within  and  subject  to  the  jurisdiction  of  the  Stan- 
naries.(7')  The  liability  of  the  members  of  a  company  formed 
under  this  act  may,  according  to  the  memorandum  of  association, 
be  limited  either  to  the  amount,  if  any,  unpaid  on  the  shares 
respectively  held  by  them,  or  to  such  amount  as  the  members 
may  respectively  undertake  by  the  memorandum  of  association 
to  contribute  to  the  assets  of  the  company  in  the  event  of  its 
*being  wound  up. (5)  In  the  former  case,  the  company  is  r^o/^o-l 
said  to  be  limited  by  shares,  and  in  the  latter,  to  be  lim-  '- 
ited  by  guarantee.  The  memorandum  of  association  of  a  company 
limited  by  shares  must  contain  the  following  things: 

1.  The  name  of  the  company  with  the  addition  of  the  word 

"limited,"  as  the  last  word  of  such  name. 

2.  The  part  of  the  United  Kingdom  in  which  the  registered 

office  of  the  company  is  proposed  to  be  situate. 

3.  The  objects  for  which  the  company  is  to  be  established. 

4.  A  declaration,  that  the  liability  of  the  members  is  limited. 

5.  The  amount  of  capital  with  which  the  company  proposes  to 

be  registered,  divided  into  shares  of  a  certain  fixed  amount; 
subject  to  the  following  regulations: 

1.  That  no  subscriber  shall  take  less  than  one  share. 

2.  That  each  subscriber  of  the  memorandum  of  association 

shall  write  opposite  to  his  name  the  number  of  shares  he 

takes.(^) 

When  the  company  is  limited  by  guarantee,  its  memorandum 
of  association  must  contain  the  first  three  of  the  above-mentioned 
requisites;  and,  (4),  a  declaration,  that  each  member  undertakes 
to  contribute  to  the  assets  of  the  company,  in  the  event  of  the 

(r)  Sect.  4.  (0  Sect.  8. 

(s)   Stat.  25  &  26  Vict.  0.  89,  8.  7. 


296  OF   INCORPOREAL    PERSONAL    PROPERTY. 

same  being  wound  up  during  the  time  that  he  is  a  member,  or 
within  one  year  afterwards,  for  payment  of  the  debts  and  liabilities 
of  the  company  contracted  before  the  time  at  which  he  ceases  to 
j.^  be  a  member,  and  of  the  *costs,  charges  and  expenses  of 

'-  '^  -^  winding  up  the  company,  and  for  the  adjustment  of  the 
rights  of  the  contributories  amongst  themselves,  such  amount  as 
may  be  required,  not  exceeding  a  specified  amount,  (w) 

If  no  limit  be  placed  on  the  liability  of  the  members,  the  com- 
pany is  called  an  unlimited  company,  and  its  memorandum  of 
association  must  contain  only  the  following  things  : 

1.  The  name  of  the  company. 

2.  The  part  of  the  United  Kingdom  in  which  the  registered 

office  of  the  company  is  proposed  to  be  situate. 

3.  The  objects  for  which  the  company  is  to  be  established.(a:;) 

The  memorandum  of  association  must  bear  the  same  stamp  as 
if  it  were  a  deed,  and  must  be  signed  by  each  subscriber  in  the 
presence  of  and  be  attested  by  one  witness  at  the  least.  When 
registered,  it  binds  the  company  and  the  members  thereof  to  the 
same  extent  as  if  each  member  had  subscribed  his  name  and  af- 
fixed his  seal  thereto,  and  there  were  contained  in  the  memoran- 
dum a  covenant  on  the  part  of  himself,  his  heirs,  executors,  and 
administrators,  to  observe  all  the  conditions  of  such  memorandum, 
subject  to  the  provisions  of  the  act.(^)  No  alteration  can  be  made 
by  any  company  in  the  conditions  contained  in  its  memorandum 
of  association ;  except  that  a  company  limited  by  shares  may  in- 
crease its  capital  by  the  issue  of  new  shares  of  such  amount  as  it 
thinks  expedient,  or  may  consolidate  and  divide  its  capital  into 
shares  of  larger  amount  than  its  existing  shares,  or  convert  its 
r*9nj.i  P^^^^'^P  shares  into  *stock;(z)  and  except  that  any  com- 
pany may,  with  the  sanction  of  a  special  resolution  of  the 
company  as  after  mentioned,  and  with  the  approval  of  the  Board 
of  Trade,  change  its  name ;  but  such  change  will  not  affect  any 
of  the  rights  or  obligations  of  the  company,  (a) 

(ii)  Stat.  25  &  26  Vict.  c.  89,  s.  9.  (z)   Stat.  25  &  26  Vict.  c.  89,  s.  12. 

{X)   Sect.  10.  (a)   Sect.  13. 

(y)    Sect.  11. 


OF    PERSONAL    ANNUITIES,    STOCKS,    AND    SHARES.         297 

The  memorandum  of  association  may  in  the  case  of  a  company 
limited  by  shares,  and  must  in  the  case  of  a  company  limited  by 
guarantee  or  unlimited,  be  accompanied,  when  registered,  by 
articles  of  association  signed  by  the  subscribers  to  the  memoran- 
dum of  association,  and  prescribing  such  regulations  for  the  com- 
pany as  the  subscribers  shall  deem  expedient.  These  articles 
must  be  expressed  in  separate  paragraphs  numbered  arithmetic- 
ally. The  act  contains  a  table  marked  A,  in  the  first  schedule 
thereto,  of  provisions,  all  or  any  of  which  may  be  adopted  in  the 
articles  of  association. (6)  The  regulations  contained  in  this  table 
will,  if  not  excluded  or  modified  by  the  articles,  be  deemed,  so 
far  as  they  are  applicable,  to  be  the  regulations  of  every  company 
limited  by  shares. (e)  The  articles  of  association  must  be  printed 
and  stamped  as  if  they  were  contained  in  a  deed,  and  must  be 
signed  and  attested  in  the  same  manner  as  the  memorandum  of 
association ;  and  when  registered,  they  bind  the  company  and  the 
members  thereof  to  the  same  extent.(c/)  The  memorandum  and 
articles,  if  any,  are  to  be  registered  by  the  registrar  of  joint-stock 
companies ;(e)  and,  thereupon,  the  company  is  incorporated,  with 
power  to  hold  lands ;  and  a  certificate  of  the  incorporation  of  any 
company  given  by  the  registrar  shall  be  conclusive  evidence  that 
all  the  requisitions  of  the  act  in  respect  of  registration  have  been 
complied  with.(/)  Xo  company  formed  for  the  *purpose  r^f^^r^r-, 
of  promoting  art,  science,  religion,  charity,  or  any  other 
like  object,  not  involving  the  acquisition  of  gain  by  the  company, 
or  by  the  individual  members  thereof,  shall,  without  the  sanction 
of  the  Board  of  Trade,  hold  more  than  two  acres  of  land;  but 
the  Board  of  Trade  may,  by  license  under  the  hand  of  one  of 
their  principal  or  assistant  secretaries,  empower  any  such  com- 
pany to  hold  lands  in  such  quantity  and  subject  to  such  conditions 
as  they  think  fit.(^)  All  shares  are  to  be  personal  estate. (A) 
Every  company  is  required  to  keep  a  register  of  its  members  ;(i) 
and  every  company  having  a  capital  divided  into  shares  is  required 
to  make  out  an  annual  list  of  its  members,  with  other  particulars, 
and  to  forward  a  copy  thereof  to  the  registrar  of  joint-stock 

(*)   Sect.  14.  (/)  Sect.  18. 

{e)   Sect.  15.  (?)  Stat.  25  &  26  Viot.  c.  89,  s.  21. 

(d)   Sect.  16.  (h)   Sect.  22. 

(«)   Sect.  17..  (i)   Sect.  25. 


298  OF   INCORPOREAL   PERSONAL    PROPERTY. 

companies,(/;)  Xo  notice  of  any  trust,  expressed,  implied,  or  con- 
structive, is  to  be  entered  on  the  register.(^)  And  a  certificate 
under  the  common  seal  of  the  company,  specifying  any  shares  or 
stock  held  by  any  member,  is  prima  facie  evidence  of  his  title  to 
the  shares  or  stock  therein  specified. (m).  And  the  register  of 
members  is  prima  fade  evidence  of  any  matters  by  the  act  directed 
or  authorized  to  be  inserted  therein. (?/) 

Every  company  is  bound  by  the  act  to  have  a  registered  office, 
to  which  all  comm.unications  and  notices  may  be  addressed. (o) 
And  every  limited  company  must  keep  its  name  painted  or  affixed 
on  the  outside  of  every  office  or  place  of  business  of  the  com- 
pany, in  a  conspicuous  position,  in  letters  easily  legible,  and  must 
have  its  name  engraven  in  legible  characters  on  its  seal,  and  must 
have  its  name  mentioned  in  legible  characters  in  all  notices,  ad- 
vertisements, bills,  notes,  indorsements,  checks,  orders  for  money 
or  goods  on  behalf  of  the  *company,  and  in  all  bills  of 
'-  ^  parcels,  invoices,  receipts,  and  letters  of  credit  of  the 
company.(;p)  And  every  limited  company  is  also  required  to 
keep  a  register  of  all  mortgages  and  charges  specifically  aflr'ecting 
property  of  the  company.(r^)  And  every  limited  banking  com- 
pany, and  every  insurance  company,  and  deposit,  provident,  or 
benefit  society  under  the  act,  is  required  before  it  commences 
business,  and  afterwards  on  the  first  Monday  in  February,  and 
the  first  Monday  in  August  in  every  year,  to  make  a  statement  of 
its  capita],  liabilities,  and  assets  in  a  given  form,  to  be  put  up  in  a 
conspicuous  place  in  the  office  of  the  company. (?') 

Subject  to  the  provisions  of  the  act,  and  to  the  conditions  con- 
tained in  the  memorandum  of  association,  any  company  formed 
under  the  act  may,  in  general  meeting,  from  time  to  time,  by 
passing  a  special  resolution  in  manner  after  mentioned,  alter  all 
or  any  of  the  regulations  of  the  company  contained  in  the  articles 
of  association,  or  in  the  table  marked  A,  in  the  first  schedule, 
where  such  table  is  applicable  to  the  company;  or  make  new 
regulations  to  the  exclusion  of  or  in  addition  to  all  or  an}-  of  the 

(>t)  Sect.  26.  (o)   Sect.  39. 

(/)   Sect.  .30.  (;;)   Stat.  26  &  26  Vict.  c.  89,  s.  41. 

(7»)  Sect.  31.  (q)  Sect.  43.  . 

(m)  Sect.  37.  (r)   Sect.  44. 


OF    PERSONAL   ANNUITIES,    STOCKS,    AND    SHARES.         299 

regulations  of  the  company ;  and  any  regulations  so  made  by 
special  resolution  shall  be  deemed  to  be  the  regulations  of  the 
company  of  the  same  validity  as  if  they  had  been  originally  con- 
tained in  the  articles  of  association,  and  shall  be  subject  in  like 
manner  to  be  altered  or  modified  by  any  subsequent  special  reso- 
lution.(5)  A  resolution  passed  by  a  company  under  the  act  is 
deemed  to  be  special  whenever  a  resolution  has  been  passed  by  a 
majority  of  not  less  than  three-fourths  of  such  members  of  the 
company  for  the  time  being  entitled,  according  to  the  regula- 
tions of  the  company,  to  vote  as  may  be  present,  in  person  or 
*by  proxy  (in  cases  where  by  the  regulations  of  the  com-  r*9A7-| 
pany  proxies  are  allowed),  at  any  general  meeting  of 
which  notice  specifying  the  intention  to  propose  such  resolution 
has  been  duly  given;  and  such  resolution  has  been  confirmed  by 
a  majority  of  such  members  for  the  time  being  entitled,  accord- 
ing to  the  regulations  of  the  company,  to  vote  as  may  be  present, 
in  person  or  by  proxy,  at  a  subsequent  general  meeting,  of  which 
notice  has  been  duly  given,  and  held  at  an  interval  of  not  less 
than  fourteen  days,  nor  more  than  one  month  from  the  date  of 
the  meeting  at  which  such  resolution  was  first  passed.  At  any 
such  meeting,  unless  a  poll  is  demanded  by  at  least  five  members, 
a  declaration  of  the  chairman  that  the  resolution  has  been  carried 
shall  be  deemed  conclusive  evidence  of  the  fact,  without  proof 
of  the  number  or  proportion  of  the  votes  recorded  in  fiivor  or 
against  the  same.  Notice  of  any  such  meeting  shall  be  deemed 
to  be  duly  given  and  the  meeting  to  be  duly  held,  whenever  such 
notice  is  given  and  meeting  held  in  manner  prescribed  by  the  reg- 
ulations of  the  company.  In  computing  the  majority,  when  a 
poll  is  demanded,  reference  shall  be  had  to  the  number  of  votes 
to  which  each  member  is  entitled  by  the  regulations  of  the  com- 
pany.(^)  A  copy  of  every  special  resolution  must  be  printed  and 
registered,(i^)  and  must  be  annexed  to  or  embodied  in  every  copy 
of  the  articles  of  association  that  may  be  issued  after  the  passing 
of  such  resolution. (a-) 

Provision    is    made   for  the  Avinding  up  of  joint  stock  com- 
panies either  by  the  court{^)  or  voluntarily  ;(z)  and  if  voluntarily, 

(s)   Sect.  50.  (x)   Sect.  54. 

(0   Stat.  25  &  26  Vict.  c.  89,  s.  51.  (y)  Sects.  79-128. 

(h)   Sect.  53.  z)   Sects.  129-I4Ci. 


300  OF   INCORPOREAL    PERSONAL    PROPERTY. 

the  winding  up  may  by  the  order  of  the  court  be  subject  to  its 
supervision. (c/)  Tlie  court  to  which  this  jurisdiction  is  given  is 
*the  Court  of  Chancery,  except  in  the  case  of  mines  sub- 
'-  '^  -•  ject  to  the  jurisdiction  of  the  Stannaries;  but  where  the 
Court  of  Chancery  makes  an  order  for  winding  up  a  company 
under  the  act,  it  may,  if  it  think  fit,  direct  all  subsequent  pro- 
ceedings for  winding  up  the  same  to  be  had  in  tlie  Court  of  Bank- 
ruptcy having  jurisdiction  in  tlie  pkiee  in  which  the  registered 
office  of  the  company  is  situate, (/^)  The  winding  up  is  effected 
by  Uquidators  appointed  for  tliat  purpose,  and  who  if  appointed 
by  the  court  are  styled  official  liquidators.(c)  All  persons  liable 
to  contribute  to  the  assets  of  a  company  under  the  act,  in  the 
event  of  its  being  wound  up,  are  called  contributories.(c/)  The 
liability  of  contributories  is  regulated  by  the  following  rules  :{c) 

1.  Ko  past  member  shall  be  liable  to  contribute  to  the  assets 

of  the  company,  if  he  has  ceased  to  be  a  member  for  a  period 
of  one  year  or  upwards  prior  to  the  commencement  of  the 
winding  up : 

2.  ISTo  past  member  shall  be  liable  to  contribute  in  respect  of 

any  debt  or  liability  of  the  company  contracted  after  the 
time  at  which  he  ceased  to  be  a  member : 

3.  No  past  member  shall  be  liable,  to  contribute  to  the  assets 

of  the  company  unless  it  appears  to  the  court  that  the  ex- 
isting members  are  unable  to  satisfy  the  contributions  re- 
quired to  be  made  by  them  in  pursuance  of  the  act; 

4.  In  the  case  of  a  company  limited  by  shares,  no  contribu- 

tion shall  be  required  from  any  member  exceeding  the 
amount,  if  any,  unpaid  on  the  shares  in  respect  of  which 
he  is  liable  as  a  present  or  passed  member : 

5.  In  the  case  of  a  company  limited  by  guarantee,  no  *con- 

[*209]  tribution  shall  be  required  from  any  member 
exceeding  the  amount  of  the  undertaking  entered  into  on 
his  behalf  by  the  memorandum  of  association: 

{a)   Sects.  147-152.  {d)   Sect.  74. 

(b)  Stat.  25  &  26  Vict.  c.  89,  s.  81.  (e)  Sect.  38. 

(c)  Sects.  92-97,  133-144. 


OF    PERSONAL   ANNUITIES,    STOCKS,    AND    SHARES.         301 

6.  Xotliing  in  the  act  contained  shall  invalidate  any  provision 

contained  in  any  policy  of  insurance  or  other  contract, 
whereby  the  liability  of  individual  members  upon  any 
such  policy  or  contract  is  restricted,  or  whereby  the  funds 
of  the  company  are  alone  made  liable  in  respect  of  such 
policy  or  contract : 

7.  I^o  sum  due  to  any  member  of  a  company,  in  his  character 

of  a  member,  by  way  of  dividends,  profits,  or  otherwise, 
shall  be  deemed  to  be  a  debt  of  the  company  payable  to 
Buch  member  in  a  case  of  competition  between  himself  and 
any  other  creditor  not  being  a  member  of  the  company ; 
but  any  such  sum  may  be  taken  into  account  for  the  pur- 
poses of  the  final  adjustment  of  the  rights  of  the  contrib- 
utories  amongst  themselves. 

Shares  in  joint  stock  companies  are  not  goods,  wares,  or  ynerchan- 
dise  within  the  17th  section  of  the  Statute  of  Frauds ;  so  that  they 
do  not  require  a  written  memorandum  for  a  contract  for  their 
sale,  when  the  value  exceeds  10/.,  and  the  buyer  does  not  accept 
and  receive  any  part,  nor  give  something  in  earnest  to  bind  the 
bargain  or  in  part  payment.(/)  And  such  shares  were  not  con- 
sidered to  be  stock  within  the  meaning  of  the  Stock  Jobbing  Act 
above  mentioned. (^) 

Several  acts  of  Parliament  have  been  passed  for  the  *en-  ^^  .. 
couragement  of  friendly  societies,  for  the  mutual  relief  of  '-  "^ 
their  members  and  their  families  in  case  of  sickness,  old  age, 
death,  or  other  contingencies  ;(/i)  all  of  which  are  now  consolida- 
ted into  one  act.(«)  The  rules  of  these  societies  are  required  to 
be  certified  by  the  registrar  of  friendly  societies,  and  in  whose 
custody  a  transcript  of  the  rules  of  every  friendly  society  is  now 
required  to  be  kept.(/.:)     And  it  is  now  provided  that  the  registrar 

{/)  Humble  v.  Mitchell,  II  Ad.  &  Ell.  205,  E.  C.  L.  R.  vol.  .39;  Knight  v.  Barber,  16  M. 
&  W.  fifi  ;   Bowlby  V.  Bell,  3  C.  B.  284,  E.  C.  L.  R.  vol.  54.     See  ante,  p.  37. 

(g)  Hewitt  V.  Price,  4  Man.  &  Gr.  355,  E.  C.  L.  R.  vol.  43  ;  Williams  v.  Tyre,  18  Beav. 
366. 

{h)  Stat.  10  Geo.  IV,  c.  56,  amended  by  4  >fc  5  Will.  IV,  c.  40  ;  3  &  4  Vict.  c.  73  ;  9  A  10 
Vict.  c.  27;  13  &  14  Vict.  c.  115  ;  15  &  16  Vict.  c.  65;  16  &  17  Vict.  c.  123;  17  &  18  Vict. 
c.  101. 

(t)  Stat.  18  &  19  Vict.  c.  63,  amended  by  stats.  21  &  22  Vict.  c.  101,  and  23  A  24  Vict, 
c.  58. 

,(X)  Stat.  18  &  19  Vict.  c.  63,  g.  26.  A  transcript  of  the  rules  was  formerly  required  to 
be  enrolled  with  the  clerk  of  the  peace.     Stat.  4  &  5  Will.  IV,  c.  40,  s.  4. 


302  OF    INCORPOREAL   PERSONAL    rROPERTT. 

of  friendly  societies  sliall  not  grant  any  certificate  to  any  society 
assuring  to  any  member  thereof  a  certain  annuity  or  superannua- 
tion, deferred  or  immediate,  unless  the  table  of  contributions 
payable  for  such  kind  of  assurance  shall  have  been  certified  un- 
der the  hand  of  the  actuary  to  the  commissioners  for  the  reduc- 
tion of  the  national  debt,  or  by  an  actuary  to  some  life  assurance 
company  in  London,  Edinburgh,  or  Dublin,  who  shall  have  exer- 
cised the  profession  of  actuary  for  at  least  five  years.(^)  On  the 
death  or  removal  of  any  trustee  of  one  of  these  societies,  the 
wliole  property  of  the  society  vests  in  the  succeeding  trustee  for 
the  same  estate  and  interest  as  the  former  trustee  had  therein, 
and  subject  to  the  same  trusts,  without  any  assignment  or  con- 
veyance whatever,  except  the  transfer  of  stock  and  securities  in 
the  public  funds.(w)  And  on  the  death,  bankruptcy,  or  insolvency 
of  any  officer  of  any  such  society,  or  on  any  execution  issuing 
against  him,  or  on  his  making  any  assignment  or  conveyance  for 
the  benefit  of  his  creditors,  the  money  or  effects  in  his  hands  be- 
longing  to  the  society  are  to  be  paid  over  and  ^delivered 
*-  -'to  the  society  before  any  other  of  his  debts  are  paid.(7?) 
Acts  of  Parliament  have  been  passed  to  legalize  the  formation  of 
industrial  and  provident  societies  for  carrying  on  trades  or  handi- 
crafts in  common, (o)  and  many  of  the  provisions  which  relate  to 
friendly  societies  apply  also  to  these  institution8.(p)  Loan  socie- 
ties are  regulated  by  another  act  of  Parliament,  which,  after 
having  been  long  periodically  continued,  is  now  made  perpet- 
ual.(^)  Other  acts  of  Parliament  have  recently  been  passed  for 
the  regulation  of  savings  banks  ;(r)^  and  particularly  the  establish- 
ment of  savings  banks  in  connection  with  the  post-ofiice,(5) — 
banks  which,  having  the  security  of  a  government  guarantee, 
are  a  great  boon  to  the  poorer  classes. 

(/)  Stat.  18  &  19  Vict.  c.  6.3,  s.  26. 
(ot)  Sect.  18. 

(?/.)  Stat.  18  &  19  Vict.  c.  6.3,  s.  23. 

(o)   Stat.  15  &  16  Vict.  c.  31,  amended  by  stat?.  17  &  18  Vict.  c.  25,  and  19  &  20  Vict.  c. 
40  ;   repealed  and  consolidated  by  stat.  25  &  26  Vict.  c.  87. 
(;»)   Stat.  25  &  26  Vict.  c.  87,  s.  15. 

(y)   Stat.  3  &  4  Vict.  c.  100,  made  perpetual  by  stat.  26  &  27  Vict.  c.  56. 
{,)  Stat.  26  &  27  Vict.  c.  87.  (s)  Stats.  24  Vict.  c.  14,  26  Vict.  c.  14. 

1  For    statutory     regulations    resembling    peeting  Savings  Institutions  and  Loan  Com- 
those  spoken  of  in  the  text,  see  the  acts  re-    panics;    Purd.  Dig.  (1861),  p.  106. 


OF    PERSONAL    ANNUITIES,    STOCKS,    AND    SHARES.  303 

An  act  of  Parliament  also  exists  for  the  regulation  of  benefit 
building  societies.(i')i  Tlie  funds  of  these  societies  are  raised  by 
monthly  contributions  of  the  members,  which  must  not  exceed 
20s.  per  share,  and  by  fines  for  non-payment.  The  shares  must 
not  exceed  the  value  of  150^.  each;  but  any  member  may  hold 
more  than  one  share,  (u)  When  the  amount  of  the  shares  has 
been  realized,  the  money  is  divided  amongst  the  members,  and 
the  society  is  dissolved.  Such  members,  however,  as  may  wish 
to  buy  land  or  to  build,  may  receive  the  amount  of  their  shares 
in  advance  on  payment  of  an  additional  subscription  by  way  of 
interest,  and  also  on  payment  of  a  bonus  for  the  advance,  p2l21 
*which  of  course  is  deducted  from  the  amount  of  the 
share  advanced.  This  bonus  is  usually  determined  by  competi- 
tion amongst  the  members,  the  shares  to  be  paid  in  advance 
being  put  up  by  auction  by  the  society;  and  the  subscriptions  and 
fines  to  become  due  in  respect  of  the  advanced  shares  are  then 
secured  to  the  society  by  the  purchasers,  by  mortgage  of  land  or 
houses  of  suificient  value.(2;)  These  mortgages  are  not  liable  to 
stamp  duty;(^)  they  were  also  exempt  from  any  of  the  forfeitures 
or  penalties  formerly  in  force  against  usury  ;(z/  and  a  receipt  for 

(t)  Stat.  6  A  7  Will.  IV,  c.  32.  («)   Morrison  v.  Glover,  4  Ex.  Rep.  430. 

(.r)  See  Mosley  v.  Baker,  6  Hare,  87;  3  De  Gex,  M.  &  G.  1032;  Doe  d.  Morrison  v. 
Glover,  15  Q.  B.  103,  E.  C.  L.  R.  vol.  69  ;  Seagrave  v.  Pope,  1  De  Gex,  Mac.  &  Gord.  783  ; 
Fleming  v.  Self,  1  Kay,  518  ;  3  De  Gex,  Mac.  &  Gord.  997  ;  Farmer  v.  Smith,  4  H.  &  N. 
196  ;  Sparrow  v.  Farmer,  26  Beav.  511  ;   Smith  v.  Pilkington,  1  De  Gex,  F.  &  J.  120. 

(y)  Walker  v.  Giles,  6  C.  B.  662,  E.  C.  L.  R.  vol.  60  ;  Williams  v.  Hayward,  22  Beav. 
220. 

(z)  Stat.  6  &  7  Will.  IV,  c.  32,  s.  2. 


'  An  act  of  the  lejrislature  of  Pennsylva-  visions  are  extended  to  Montgomery  County. 
nia,  passed  the  22d  day  of  April,  1850,  em-  By  the  act  of  the  21st  of  April,  1852.  they 
powers,  "any  number  of  per.sons,  citizens  of  are  extended  to  Delaware  County  ;  and  by 
the  city  and  county  of  Philadelphia,  and  the  the  act  of  the  14th  of  April,  1853,  they  are 
counties  of  Schuylkill  and  Berks,"  "who  extended  to  Alleghany  County  ;  and  by  sub- 
are  associated,  or  who  mean  to  associate"  sequent  statutes,  the  act  is  still  further  ex- 
"for  the  purpose  of  forming  mutual  savings  tended;  Purd.  Dig.  (1861),  p.  129. 
fund,  land  and  building  a.ssociations,"  to  ^  But  such  a  provision,  will  not  exonerate 
make  application  for  incorporation  "  to  the  all  contracts  made  by  such  associations  with 
Court  of  Common  Pleas  of  the  proper  county,  their  members,  from  the  operation  of  the 
in  which  said  corporation  or  body  politic  in  statute  relating  to  usury  ;  Savings  Bk.  v. 
law,  is  intended  to  be  situated  ;"  and  the  said  Wilcox,  24  Conn.  R.  147.  In  Pennsylvania 
courts  are  thereby  authorized  to  incorporate  it  has  been  held,  that  building  associations 
the  said  a.ssociations,  under  the  stipulations  cannot  recover  on  their  mortgage  loans,  more 
and  provisos  therein  mentioned.  By  an  act  than  the  .sum  loaned,  with  the  actual  interest 
of  the    3d    of  April,    1851,    the  above    pro-  thereon;  Ilouser  v.  Hermann  Building  Ass., 


304        OF  INCORPOREAL  PERSONAL  PROPERTY. 

the  moneys  secured,  indorsed  by  tlie  trustees  of  the  society  upon 
any  such  mortgage,  vests  the  estate  comprised  in  the  security  in 
the  person  entitled  to  the  equity  of  redemption,  without  any  re- 
conveyance.(«)  Under  cover  of  the  Buikling  Societies  Act,  many 
societies  called  freehold  land  societies  have  been  established  for 
the  purpose  of  buying  freehold  land  and  selling  it  again  in  lots 
to  the  diftercnt  members;  but  these  societies  are  not  within  the 
scope  of  the  building  and  friendly  societies  acts,  and  can  only  be 
certified  as  such  by  the  concealment  of  their  real  object.(6) 

An  act  has  also  been  passed  for  facilitating  the  erection  of 
dwelling-houses  for  the  laboring  classes,(c)  under  which  any 
number  of  persons,  not  less  than  six,  may  by  subscribing  articles 
of  association  form  themselves  into  a  company  for  the  purposes 
of  the  act.  The  *articles  are  to  be  in  a  given  form,  and 
L  -I  to  be  registered  by  the  registrar  of  joint  stock  companies. 
And  the  Companies  Clauses  Consolidation  Act,  1845,  is  incor- 
porated into  the  act,  the  articles  of  association  being  deemed  the 
special  act. 

The  provisions  above  referred  to  for  charging  the  stock  of  any 
debtor  with  the  payment  of  any  judgment  deht,{d)  extend  to 
stock  and  shares  in  any  public  company  in  England,  whether  in- 
corporated or  not.(t') 

The  prerogative  of  the  crown  in  the  grant  of  letters-patent  is 
frequently  exercised  not  only  for  the  incorporation  of  joint  stock 
companies,  but  also  for  conferring  on  private  individuals  certain 
exclusive  rights  and  privileges.  These  rights,  c&Wed  patents  from 
the  letters-patent  which  confer  them,  will  be  considered  in  the 
next  chapter. 

(a)   Sect.  5  ;  Prosser  v.  Price,  28  Beav.  68.  (r)   Stat.  18  &  19  Vict.  c.  132. 

(i)  See  Grimes  v.  Harrison,  2fi  Beav.  435.         (d)   Atite,  p.  188. 

{e)  Stnt.  1  &  2  Vict.  c.  110,  s.  14.  See  Nicholls  v.  Rosewarne,  6  C.  B.  N.  S.  480,  E.  C. 
L.  R.  vol.  95. 


4:1   Pa.   Sf.    R.  478 ;  Denny  v.    West  Phil'a  miums  taken  by  the  said  associations  should 

Ass.,  39  Id.  154  ;  Reiser  v.  Saving  Fund,  Id.  not  be  deemed  usurious. 

137  ;  and  this  judgment  has  been  reiterated  See  also  further  on  the  subject  of  building 
in  McGrath  v.  Hamilton  Savings  and  Loan  associations,  the  following  decisions  support- 
Ass.,  44  Pa.  St.  R.  385,  decided  subsequently  ing  the  doctrine  stated  in  the  text ;  Pomeroy 
to  the  act  of  1859,  in  the  eighth  section  of  v.  Ainsworth,  22  Barb.  R.  118  ;  Citizens' 
which  it  is  declared,  that  the  true  intent  and  Mutual  Loan  Ass.  v.  Webster,  25  Id.  263  ; 
meaning  of  the  acts  of  the  legislature,  in  re-  West  Winsted  Saving  Bk.  v.  Ford,  27  Conn, 
iation   to  building  associations  is,  that  pre-  R.  282. 


OF   PATENTS    AND    COPYRIGHTS.  305 


*CHAPTER*II.  [*214] 

OF    PATENTS    AND    COPYRIGHTS. 

A  PATENT  is  the  name  usually  given  to  a  grant  from  the  crown, 
by  letters-patent,  of  the  exclusive  privilege  of  making,  using, 
exercising  and  vending  some  new  invention.     The  granting  of 
such  letters-patent  is  an  ancient  prerogative  of  the  crown,  a  prero- 
gative which  remains  unaffected  by  the  Patent  Law  Amendment 
Act,  1852.(«)     In  the  reign  of  Queen  Elizabeth  this  prerogative 
was  stretched  far  beyond  its  due  limits,  and  the  monopolies  thus 
created  formed  one  of  the  grievances  which  King  James,,  her 
successor,  was   at  last  obliged  to  remedy.     Accordingly  by  a 
statute  passed  in  the  twenty-first  year  of  his  reign,  and  com- 
monly called  the  Statute  of  Monopolies, (6)  it  was  declared  and 
enacted  that  all  such  monopolies  were  altogether  contrary  to  the 
laws  of  this  realm,  and  so  were  and  should  be  utterly  void  and 
of  none  effect,  and  in  nowise  put  in  ure  or  execution.     In  this 
statute,  however,  there  are  certain  exceptions,  and  particularly 
one  on  which  the  modern  law  with  respect  to  patents  may  be 
said  to  be  founded.     This  exception  is  as  follows:  "Provided 
also  and  be  it  declared  and  enacted,  that  any  declaration  before 
mentioned  shall  not  extend  to  any  letters-patent  and  grants  of 
privilege  for  the  term  of  fourteen  years  or  under,  hereafter  to  be 
made,  of  the  sole  working  or  making  of  any  manner  of  new 
manufactures  within  this  realm,  to  the  true  amd  first  inventor 
and  inventors  of  such  manufactures,  which  others  at  the  time  of 
making  such  letters-patent  and  *grant8  shall  not  use,  so  ^^^^ ... 
also  they  be  not  contrary  to  the  law  nor  mischievous  to  "-  "^ 
the  state,  by  raising  prices  of  commodities  at  home,  or  hurt  of 
trade,  or  generally  inconvenient;  the  said  fourteen  years  to  be 
accounted  from  the  date  of  the  first  letters-patent  or  grant  of 
such  privilege  hereafter  to  be  made;  but  that  the  same  shall  be 

(o)   Stat.  15  &  IG  Vict.  c.  8.3  ;  see  .sect.  16.  (4)   Stat.  21  .lac.  I,  c.  3, 

20 


306         OF  INCORrOREAL  PERSONAL  PROPERTY. 

of  sncli  force  as  tliey  should  be  if  this  act  had  never  been  made, 
and  of  none  other,  "(t^) 

It  will  be  seen  that  the  granting  of  letters-patent  is  not  ex- 
pressly warranted  by  this  statute;  but  that  it  merely  reserves  to 
such  letters-patent  as  fall  within  the  terms  of  the  exception,  such 
force  as  they  should  have  had  if  the  act  had  never  been  made, 
and  none  other  force.  As,  however,  all  grants  of  exclusive  priv- 
ilege by  letters-patent,  which  do  not  fall  within  this  exception 
and  some  others  of  little  importance,  are  now  rendered  void  by 
the  statute,  the  construction  of  this  exception  has  become  a  mat- 
ter of  great  practical  importance.  And  first,  the  term  must  be 
fourteen  years  from  the  date  of  the  letters-patent,  or  under;  and 
the  full  term  of  fourteen  years  is  usually  granted.  But  it  is  now 
provided,  that  all  letters-patent  for  inventions,  granted  under  the 
provisions  of  the  Patent  Law  Amendment  Act,  1852,  shall  be 
made  subject  to  the  condition  that  the  same  shall  be  void,  and 
that  the  powers  and  privileges  thereby  granted  shall  cease,  at  the 
expiration  of  three  and  seven  years  respectively  from  tlie  date 
thereof,  unless  there  be  paid  before  the  expiration  of  the  said 
three  and  seven  yeara  respectively  certain  stamp  duties  mentioned 
in  the  act,  namely,  50/.  stamp  dutj^  before  the  expiration  of  the 
third  year,  and  100/.  stamp  duty  before  the  expiration  of  the 
seventh  year.((/)  These  payments  appear  high,  but  they  are  a 
great  improvement  on  the  old  law,  under  which  heavy  fees  and 
r*9in  ^u^y  w^^'^  payable  on  taking  out  every  ^patent;  whereas 
now,  if  a  patent  prove  useless,  it  may  be  discontinued, 
and  the  payment  saved.  By  a  modern  act  of  Parliament,(e)  a 
prolongation  of  the  term  granted  by  the  original  letters-patent 
may  be  granted_^  either  to  the  original  grantor  or  to  his  as- 
signee,(/)  for  a  term  not  exceeding  seven  years  after  the  expira- 
tion of  the  first  term,  in  case  the  judicial  committee  of  the  privy 
council  shall,  upon  proper  application,  report  to  her  majesty,  that 
such  further  extension  of  the  term  should  be  granted.     And  if 

(c)   Stat.  21  Jac.  I,  c.  3,  s.  6. 

{(l)  Stat.  16  &  17  Vict.  c.  5,  s.  2  ;  Williams  v.  Frost,  28  Beav.  93. 

(«)  Stat.  5  &  6  Will.  IV,  e.  83,  s.  4,  amended  by  2  &  3  Vict.  c.  67  ;  and  extended  by 
stats.  15  &  16  Vict.  c.  83,  s.  40,  and  16  &  17  Vict.  c.  116,  s.  7. 

(/)  Russell  V.  Ledsam,  14  Mee.  &  Wels.  574;  affirmed,  16  M.  k  W.  633  ;  1  H.  of  L.  Gas. 
687. 


OF    PATENTS   AND    COPYRIGHTS.  307 

sucli  further  period  of  seven  years  can  be  shown  to  be  insuiRcient 
for  the  reimbursement  and  remuneration  of  the  expense  and  labor 
incurred  in  perfecting  the  invention,  then,  by  a  subsequent  stat- 
ute,(^)  the  crown  may  grant  to  the  inventor,  or  his  assignee,  an 
extension  of  the  patent  for  any  time  not  exceeding  fourteen  years/ 

ig)   Stat.  7  &  8  Vict.  c.  69,  ss.  2,  4,  continued  by  stats.  15  &  16  Vict.  c.  83,  s.  40,  and  16 
&  17  Vict.  c.  115,  s.  7. 


1  The   acts  of  Congress  in  relation  to   pa-  shall  issue,  shall   not   exceed   fourteen  years 

tents,   which  had  been  enacted  prior  to  the  from  the  time  when  the  patent  issued  in  the 

4th  of  July,  1836,  were  repealed  by  the  last  foreign  country. 

section    of  the    act   approved    on   that   day.  The  third  section  of  the  act  of  August  29, 

This  act,  and  the  subsequent  enactments  on  1842,  provides,    that  citizens,  or  aliens  who 

the  same  subject,  constitute  the  present  pa-  have  resided  one  year  in  the  United   States, 

tent  law  of  the  United   States.     The  sixth  and  taken  oath  of  their  intention  to  become 

section  of  the  act  of  the  4th  of  July,  1836  citizens,  may  have  a  patent,   upon  payment 

(5  Stats,  at  Large,  117),  points  out  the  man-  of  one-half  of  the   fee  heretofore   required, 

ner  in  which  application  is  to  be  made  for  a  "who   have  invented  or  produced  any  new 

patent,  by  an  inventor  or  inventors,  for  "any  and    original    design,  for   the    manufacture, 

new  and   useful   art,  machine,  manufacture,  whether  of  metal,  or  other  material,   or  ma- 

or  composition   of  matter,  or   any   new  and  terials,  or  any  new  and  original  design   for 

useful    improvement    on    any  art,    machine,  the  printing  of  woollen,  silk,  cotton,  or  other 

manufacture,  or  composition   of  matter,  not  fabrics,  or  any  new  and  original  design  for  a 

known  or  used  by  others,  before  his  or  their  bust,  statue   or  bas-relief,  or  composition  in 

discovery  or   invention  thereof,  and  not,  at  alto,  or  basso  relievo,  and  any  new  or  original 

the  time  of  his  application  for  a  patent,  in  impression   or  ornament,  or  to  be  placed  on 

public    use,  or  on  sale,  with  his  consent  or  any  article  of  manufacture,  the  same  being 

allowance,   as  the   inventor    or  discoverer."  formed  in  marble  or  other  material,  or  any 

By  the  ninth  section  of  the  same  act,  thirty  new  and  useful  pattern  or  print,  or  picture, 

dollars   is  to  be  paid  by  "a  citizen   of  the  to  be  either  worked   into,  or  worked    on,  or 

United  States,  or  an  alien''  who  "  shall  have  printed,  or  painted,  or  cast,  or  otherwise  fixed 

been  resident  in  the  United  States  for   one  on,  any  article  of  manufacture,  or  any  new 

year   next   preceding,   and   shall  have  made  and  original  shape  or  configuration,   of  any 

oath  of  his    intention    to    become    a  citizen  article  of  manufacture,  not  known   or    used 

thereof,"  at  the  time  of  making   application  by  others."     The  term  for  which  the  patent 

for  a  patent ;  but  if  the  inventor  is  a  subject  is  granted  in  this  case,  is  seven  years. 

of  the  King  of  Great  Britain,  the  sum  to  be  The  fifth  section  of  the  act  of  July  4,  1836, 

paid  is  five  hundred  dollars  ;  and  in  all  other  authorizes  patents   to  issue  for    the  term  of 

cafses  three  hundred  dollars.  fourteen   years  ;  and  the   eighteenth  section 

By  the  sixth  section  of  the  act  of  March  of  the  same  act  provides,  that  after  the  ex- 

3,  1839  (5  Statutes  at  Largo,  353),  it  is  en-  piration  of  the    said  term  of  fourteen   years, 

acted,  that  no  person  shall  be  debarred  from  the  patent  may  be  renewed  for  the  term  of 

receiving  a  patent,   "  by  reason  of  the  same  seven  years;  but  the  application  for  renewal 

having  been  patented  in  a  foreign  country,  must  be  made,  before  the  term  of  fourteen 

more  than   six  months  prior  to  his  applica-  years  is  expired. 

lion,  provided,  that  the  same  .shall  not  have  By  the  eleventh  section  of  the  act  of  the 

been  introduced  into  public  and  common  use  2d  of  March.  1861  (12  Stats,  at  Large,  246), 

in  the  United  States,  prior  to  the  application  a   patent  may    be  granted   for  the    terra  of 

for  such   patent;"  and  therein  it  is  also  pro-  three  and  a  half  years,  or  for  seven,  or  four- 

vided,  that   the  term  for  which  the  patent  teen  years,   as   the  applicant  may    elect  to 


308 


OF  INCORPOREAL  PERSONAL  PROPERTY. 


Secondly,  the  patent  must  be  for  "new  maunfactures  within 
this  realm,  which  others  at  the  time  of  making  such  letters-patent 


"  any  citizen  or  citizens,  or  alien  or  aliens, 
having  resided  one  year  in  the  United  States, 
and  taken  the  oath  of  his  or  their  intention 
to  become  a  citizen  or  citizens,  who  by  his, 
her  or  their  own  industry,  genius,  efforts,  and 
expense,  may  have  invented  or  produced  any 
new  and  original  design,  or  a  manufacture, 
whether  of  metal  or  other  material  or  mate- 
rials, an  original  design  for  a  bust,  statue,  or 
has  relief,  or  composition  in  alto  or  basso  re- 
lievo, or  any  new  and  original  impression  or 
ornament,  or  to  be  placed  on  any  article  of 
manufacture,  or  any  new  and  original  shape 
or  configuration,  of  any  article  of  manufac- 
ture, not  known  or  used  by  others,  before  his, 
her  or  their  invention  or  production  there- 
of." The  fees  to  be  paid  under  this  act,  are 
in  proportion  to  the  term  of  the  patent,  to 
wife,  ten  dollars  for  three  years  and  six 
months,  fifteen  dollars  for  seven  years,  and 
thirty  dollars  for  fourteen  years. 

And  by  the  sixteenth  section  of  the  same 
act,  "All  patents  hereafter  granted,  shall  re- 
main in  force  for  the  term  of  seventeen  years 
from  the  date  of  issue ;  and  all  extension  of 
such  patents,  is  hereby  prohibited." 

In  the  case  of  Child  v.  Adams  et  al.,  de- 
cided in  the  Circuit  .Court  of  the  United 
States  for  the  Eastern  District  of  Pennsyl- 
vania, in  November,  1854,  and  unreport- 
ed, in  which  a  question  arose,  relative  to 
a  mistake  made  by  an  alien  in  obtaining  a 
patent,  who  paid  only  the  fees  due  by  a  citi- 
zen of  ihe  United  States,  under  the  impres- 
sion that  no  more  was  demandable  from  him, 
when  in  fact  he  was  a  citizen  of  France,  and 
as  such  should  have  paid  greater  sums ; 
Grier,  J.,  uses  the  following  language  : 
"The  original  letters-patent  to  J.  G.  Mini, 
for  his  'improvement  in  making  lampblack,' 
were  is.^ued  on  the  13th  of  November,  1844, 
and  recited  that  Mini  '  has  made  oath  that  he 
is  a  citizen  of  the  United  States,'  &c.,  and 
'paid  the  sum  of  thirty  dollars,'  &c.  On  this 
patent,  the  complainant,  as  assignee  of  Mini, 
filed  his  bill  to  April  Term,  1850,  against  the 
respondents,  alleging  an  infringement,  and 
praying  for  an  injunction.  Among  other 
matters  of  defence  pleaded  in  the  respond- 
ent's answer,   it  was  averred,   that    'J.    G-. 


Mini,  was  not  entitled  to  said  patent  at  the 
time  it  was  gr.nnted  to  him,  because  he  was  an 
alien,  being  a  native  of  France,  and  not  a 
naturalized  citizen  of  the  United  States  ;  and 
that  he  had  applied  for,  and  obtained  the  said 
letters-patent,  as  a  citizen  of  the  United 
States,  for  the  purpose  of  defrauding  the 
revenue  of  the  additional  fees  and  charges, 
which,  as  an  alien,  he  should  have  paid  in 
order  to  obtain  a  patent.'  " 

***** 

"  When  a  statute  defines  the  extent  of 
power  given  to  one  who  acts  ministerially,  the 
court  cannot  extend  it,  or  validate  acts  done 
without  or  beyond  its  authority.  I  would 
not  be  considered  as  imputing  any  moral 
guilt  to  Mr.  Mini,  or  intent  to  commit  per- 
jurj',  in  his  particular  case.  It  is  possible  that 
men  m;ij'live  thirty  years  in  this  country,  and 
not  know  that  in  order  to  become  a  citizen, 
an  alien  must  be  naturalized.  It  is  possible 
too,  that  an  alien  dragged  to  the  polls  "  by 
respectable  gentlemen,''  and  permitted  to  vote 
by  a  complaisant  inspector,  without  question, 
may  fancy  himself  to  have  been  thus  trans- 
muted into  a  citizen.  But  instances  of  such 
amiable  ignorance  are  so  rare,  that  it  could 
hardly  be  expected,  that  legislatures  should 
anticipate  it,  by  providing  a  remedy  for  those 
whose  mistakes  are  the  consequence  of  it. 
Nor  will  the  hardship  of  this  particular  case, 
justify  the  commissioner  of  patents  in  assum- 
ing a  power  not  granted  to  him  by  the  stat- 
ute. He  has  no  power  to  confirm  a  patent 
obtained  by  a  false  suggestion,  either  by  par- 
doning the  offence,  or  excusing  it,  on  the  plea 
of  innocent  ignorance.  A  mistake  or  inad- 
vertence in  the  specification  of  a  patent,  can 
be  proved  by  the  face  of  the  paper,  and  the 
reason  alleged  for  it.  But  where  a  person 
makes  a  mistake  in  his  oath  of  citizenship, 
and  enjoys  the  benefits  of  it  for  more  than 
half  his  term,  his  innocence  can  be  proved 
by  his  own  oath  alone,  and  he  ought  not  to 
be  allowed  to  obtain  a  new  patent,  for  the 
other  half,  bj'  stultifying  himself.  This  would 
be  holding  out  a  premium  for  profitable  mis- 
takes, and  an  encouragement  to  double  per- 
jury.' 


OF   PATENTS   AND   COPYRIGHTS.  309 

and  grrants  shall  not  use."  The  use  here  mentioned  has  been  held 
to  mean  a  use  in  public;  if  therefore  the  invention,  for  which 
the  patent  is  sought  to  be  obtained,  has  been  previously  used  in 
public  within  the  realm,  the  patent  will  be  void.(A)  And  the 
realm  in  this  statute  has  been  determined  to  mean  the  United 
Kingdom  of  Great  Britain  and  Ireland ;  so  that  when  separate 
letters-patent  w^ere  granted  for  England  and  Scotland,  if  any 
invention  had  been  publicly  known  or  practised  in  England,  a 
patent  for  Scotland  was  void.(i)  *By  an  act  of  Parlia-  r^j^n-iiT-i 
ment  to  which  we  have  before  referred,  it  is,  however,  '-  ^ 
provided  that  letters-patent  may  be  Qoniirmed,  or  new  ones 
granted,  for  any  invention  or  supposed  invention,  which  shall 
have  been  found  by  the  verdict  of  a  jury,  or  discovered  by  the 
patentee  or  his  assigns,  to  have  been  either  wholly  or  in  part 
invented  or  used  before,  if  the  judicial  committee  of  the  privy 
council,  upon  examining  the  matter,  shall  be  satistied  that  the 
patentee  believed  himself  to  be  the  first  and  original  inventor, 
and  that  such  invention,  or  part  thereof,  had  not  been  publicly  and 
generally  used  before  the  date  of  the  first  letters-patent.(A)  It  is 
also  now  provided  by  the  Patent  Law  Amendment  Act,  1852,  that 
any  invention  may  be  used  and  published  for  six  months  from 
the  date  of  the  application  for  letters-patent  for  the  invention, 
without  prejudice  to  the  letters-patent,  provided  the  provisional 
specification,  which  describes  the  nature  of  the  invention,  and  is 
to  accompany  the  petition  for  the  letters-patent,  be  allowed  by 
the  proper  law  officer. (^)  It  is  also  provided  that  the  applicant, 
instead  of  having  a  provisional  specification,  may,  if  he  think  fit, 
file  a  complete  specification  under  his  hand  and  seal,  particularly 
describing  and  ascertaining  the  nature  of  his  invention,  and  in 
what  manner  the  same  is  to  be  performed,  in  which  case  the  in- 
vention will  be  protected  for  six  months  from  the  date  of  the 
application,  and  may  be  used  and  published  without  prejudice  to 
any  letters-patent  to  be  granted  for  the  same.(m)*     It  is  also  pro- 

(//)   Lewis  V.  Marling,  10  Barn.  &  Cress.  22,  E.  C.  L.  R.  vol.  21  ;  Carpenter  v.  Smith,   9 
M.  k  W.  300  ;  Re  Newall,  4  C.  B.  N.  S.  2fi9,  E.  C.  L.  R.  vol.  93. 
(2.')   Brown  v.  Annandale,  8  CI.  &  Fin.  214. 
{/.)  Stat.  5  &  6  Will.  IV,  c.  83,  s.  2. 

(/)  Stat.  15  &  16  Vict.  c.  83,  s.  8  ;  Re  Newall,  4  C.  B.  N.  S.  269,  E.  0.  L.  R.  vol.  93. 
(»0  Sect.  9.     See  also  stat.  16  &  17  Vict.  c.  116,  s.  6. 


^  By  the  twelfth  section,  of  the  act  of  the    wherever  further  time  may  be  desired  to  ma- 
4th  of  July,  1836    (5   Stats,  at  Large,  121),    lure  an  invention,  it  may  be  lawful  to  file  in 


310        OF  INCORPOREAL  PERSONAL  PROPERTY. 

vided,  that  if  any  application  for  letters-patent  be  made  in  fraud 
of  the  true  and  tirst  inventor,  any  letters-patent  granted  to  the 
true  and  tirst  inventor  shall  not  be  invalidated  by  reason  of  any 
use  or  ^publication  of  the  invention  subsequent  to  such 
•■  ^  application,  and  before  the  expiration  of  the  term  of  pro- 
tection. (?;) 

Thirdly,  a  patent  must  be  granted  "to  the  true  and  first  inven- 
tor and  inventors."  If,  therefore,  the  original  inventor  should 
sell  his  secret  to  another  person,  such  person  cannot  obtain 
letters-patent  for  the  invention  in  his  ov^^n  name;  but  the  original 
inventor  must  obtain  th6  letters-patent,  and  then  assign  them  to 
the  other.  If  two  persons  should  both  make  the  same  discovery, 
he  who  first  publishes  it  by  obtaining  a  patent  for  it,  will  be 
the  true  and  first  inventor  within  the  meaning  of  the  statute, 
although  he  may  not  actually  have  been  the  first  to  make  the 
discovery. (o)  But  a  person  cannot  obtain  a  patent  for  an  inven- 
tion which  has  been  communicated  to  him  by  another  within  the 
realm. (2;)  If,  however,  a  person  should  be  in  possession  of  an 
invention  communicated  to  him  from  abroad,  such  person,  if  he 
be  the  first  introducer  of  the  invention  into  this  country,  is 
regarded  by  the  law  as  the  true  and  first  inventor  thereof  within 
the  meaning  of  the  statute  of  .James;(r/)  and  it  is  no  objection 
that  the  patent  is  taken  out  in  trust  merely  for  the  foreign  in- 
ventor, (r)  But  it  is  now  provided  that  where  letters-patent  are 
granted  in  the  United  Kingdom  for  any  invention  first  invented 
in  any  foreign  country,  or  by  the  subject  of  any  foreign  state, 
and  a  like  privilege  for  the  exclusive  use  or  exercise  of  such 
invention  in  any  foreign  country  is  there  obtained  before  the 

(n)  Stat.  15  &  16  Vict.  c.  83,  s.  10. 

(o)    Bnulton  V.  Bull,  2  H.  Black.  487. 

{}>)   Hill  V.  Thompson,  8  Taunt.  395,  E.  C.  L.  R.  vol.  4;   S.  C.  2  J.  B.  Moore,  452. 

(q)   Erlgeberry  v.  Stephens,  2  Salk.  447. 

(r)  Reard  v.  Egerton,  3  C.  B.  97,  129,  E.  C.  L.  R.  vol.  54. 

the  Patent  Office,  a  caveat,  praying  protectiou        The  filing  of  a  caveat  is  not  however  neces- 
of  the  right  until  the  invention  is  matured  ;    sary  for   the   preservation   of  the   right,  but 
whereupon,  on  application  for  a  patent  made    merely  enables  the  inventor  to  receive  notice 
within  one  year  after  filing  the    caveat,  by    of  any  interfering  application  ;   Hildreth  v. 
any  other  person,  for  a  patent  for  an  inven-    Heath,  Cranch's  Patent  Decs.  101. 
tion  which  may  in  any  way  interfere,  notice 
will  be  given  to  the  person  who  has  filed  the 
caveat,  of  such  application. 


OF   PATENTS   AND   COPYRIGHTS.  311 

grant  of  sncli  letters-patent  in  the  United  Kingdom,  all  riglits 
and  privileges  under  such  letters-patent  shall  (notwithstanding 
any  term  in  such  letters-patent  limited)  cease  and  be  void  im- 
mediately upon  the  expiration  or  other  determination  of  the  term 
of  the  like  privilege  obtained  in  such  foreign  *country;  r-^9-|q-, 
or  where  more  than  one  such  like  privilege  is  obtained 
abroad,  immediately  upon  the  expiration  or  determination  of  the 
term  of  such  privileges  which  shall  first  expire  or  be  determined. 
And  no  letters-patent  granted  for  any  invention,  for  which  any 
patent  or  like  privilege  shall  have  been  obtained  in  any  foreign 
country,  shall  be  of  any  validity,  if  granted  after  the  expiration 
of  the  term  for  which  the  foreign  patent  or  privilege  was  in 
force. (-s)  The  remaining  restrictions  imposed  by  the  act  of  James 
I  require  no  comment. 

The  granting  of  letters-patent  is,  as  has  been  observed,  a 
prerogative  of  the  crown;  and  although  a  patent  may  now  be 
always  obtained  for  any  new  invention,  yet  the  grant  is  still  a 
matter  of  favor  and  not  of  right,  and  all  grants  of  letters-patent 
for  inventions  are  at  the  present  day  clogged  with  certain  con- 
ditions. Of  these  conditions,  the  most  important  is  that  which 
requires  the  inventor  particularly  to  describe  and  ascertain  the 
nature  of  his  invention,  and  in  what  manner  the  same  is  to  be 
performed,  by  an  instrument  in  writing  under  his  hand  and  seal, 
called  the  specification,  and  to  cause  the  same  to  be  filed  in  the 
High  Court  of  Chancery  within  a  given  period,  generally  six 
calendar  months  from  the  date.(^)  This  instrument  was  formerly 
required  to  be  enrolled  instead  of  being  merely  filed  as  at  pre- 
sent. And  it  is  provided  by  the  new  act  that,  if  a  complete 
specification  be  filed  along  with  the  petition  for  the  letters-patent, 
then,  in  lieu  of  a  condition  for  making  void  the  letters-patent  in 
case  the  invention  be  not  described  and  ascertained  by  a  subse- 
quent specification,  the  letters-patent  shall  be  conditioned  to 
become  void,  if  such  complete  specification  filed  as  aforesaid 
does  not  particularly  describe  and  ascertain  the  nature  *of  r^oc)Q-^ 
the  invention,  and  in  what  manner  the  same  is  to  be  per- 

(s)  Stat.  15  &  16  Vict.  c.  83,  s.  2.'). 

(0  Ibid.  8.  27.     See  stat.  16  &  17  Vict.  c.  115,  s.  6.     A.s  to  munitions  of  war,  fee  stat.  1'2 
Vict.  c.  13. 


312  OF   INCORPOREAL    PERSONAL   PROPERTY. 

formed. (?<)  The  object  of  requiring  a  specification  is  to  secure  to 
the  public  the  benefit  of  the  knowledge  of  the  invention  after  the 
term  granted  by  the  patent  shall  have  expired.  The  framing  of 
the  specification  is  a  matter  of  great  nicety;  for  the  description 
contained  in  it  must  correspond  with  the  title  of  the  invention 
contained  in  the  letters-patent,(?')  and  must  clearly  describe  the 
invention,(a:)  neither  covering  more  than  the  proper  subject  of 
the  patent,(^)  nor  omitting  anything  necessary  to  make  the  de- 
scription intelligible. (x)  Provision,  however,  has  been  made  by 
an  act  of  Parliament  before  referred  to,{a)  for  enabling  the 
grantee  or  assignee  of  any  letters-patent  to  enter  a  disclaimer  of 
any  part,  either  of  the  title  of  the  invention,  or  of  the  specifica- 
tion, statinor  the  reason  of  such  disclamer,  or  to  enter  a  memor- 
andum  of  any  alteration  in  the  title  or  specification,  not  being 
such  disclaimer  or  such  alteration  as  shall  extend  the  exclusive 
right  granted  by  the  patent.'  Under  these  provisions,  letters- 
patent  originally  void  may  in  many  cases  be  rendered  valid  from 
the  time  of  the  entry  of  the  disclaimer  or  alteration. (6)  And 
these  provisions  have  been  extended  to  letters-patent  granted 
and  specifications  filed  under  the  Patent  Law  Amendment  Act, 
1852. (c)     This  act  also  provides  for  the  printing,  publishing  and 

(?/)   Stat.  15  &  16  Vict.  c.  83,  s.  9. 

{v)   Rex'v.  Wheeler,   2  Barn.  &  Aid.   345,  350.     See  Nickels  v.  Haslam,  7  Man.  &  Cran. 
378,  E.  C.  L.  R.  vol.  49  ;   Beard  v.  Egerton,  3  C.  B.  97,  E.G.  L.  R.  vol.  64. 
(x)   Bloxham  v.  Elsee,  6  Barn.  &  Cres.  169,  E.  C.  L.  R.  vol.  13. 
{y)   Hill  V.  Thomp,«on,  3  Meriv.  629. 

{z)   Rex  V.  Wheeler,  nbi  supra;  Neilson  v.  Harford,  8  Mee.  &  Wels.  805. 
(a)   Stat.  6  &  6  Will.  IV,  c.  83,  s.  1.     See,  also,  stat.  7  &  8  Vict.  c.  69,  S3.  5,  6. 
(A)  Perry  v.  Skinner,  2  M.  &  W.  471.  (c)   Stat.  15  &  16  Vict.  c.  83,  s.  39. 


1  A  provision  entirely  similar,  is  contained  interest   in  such  patent.     .     .     .     And  such 

in  the  seventh  section,  of  the  act  of  Congress  disclaimer  shall  thereafter  be  taken  and  con- 

of  the  3d  of  March,   1837,  which  sets  forth,  sidered  as  part  of  the  original  specification, 

that    "whenever    any   patentee   shall    have,  to  the  extent  of  the  interest  which   shall  be 

through   inadvertence,  accident,  or  mistake,  possessed    in    the    patent,    or    right    secured 

made   his  speciiication   of  claim   too  broad,  thereby  by  the  disclaimant." 

claiming  more  than  that  of  which  he  was  the  On  the  subject  of  disclaimer,  see  the  follow- 

original  or  first  inventor,  some  material  and  ing  authorities:  O'Reilly  et  al.  v.   Morse  et 

substantial  part  of  the  thing  patented  being  al.,  15  How.  R.  63  ;  Whitney  et  al.  v.  Emmett 

truly  and  justly  his  own.  any  such  patentee  et  al.,  1  Baldw.  R.  303  ;  Wyeth  et  al.  v.  Stone 

.     .     .    may  make  disclaimer  of  such  parts  of  et  al.,  1  Story's  R.   273  ;  Reed  v.  Cutter  et 

the  thing  patented,  as  the  disclaimant  shall  al..  Id.  590  ;  Hall  v.  Wiles,  2  Blatch.  Ct.  Ct. 

not  claim  to  hold  by  virtue  of  the  patent  or  R.  ]94  ;   Silsby  v.  Foot,  20  How.  U.  S.  R.  378. 
assignment  stating  therein  the  extent  of  his 


OF    PATENTS   AND    COPYRIGHTS.  313 

sale,  under  the  direction  of  the  commissioners  of  patents,  of  all 
specifications,  disclaimers,  and  memoranda  of  alterations  deposi- 
ted or  filed  *under  the  act.(cZ)  A  "register  of  patents"  is  p^,^,-,-.-, 
also  directed  to  be  kept,  where  shall  be  entered  and  re- 
corded, in  chronological  order,  all  letters-patent  granted  under 
the  act,  the  deposit  or  filing  of  specifications,  disclaimers  and 
memoranda  of  alterations  filed  in  respect  of  such  letters-patent, 
all  amendments  in  such  letters-patent  and  specifications,  all  con- 
firmations and  extensions  of  such  letters-patent,  the  expiry, 
vacating,  or  cancelling  of  such  letters-patent,  with  the  dates 
thereof  respectively,  and  all  other  matters  and  things  effecting 
the  validity  of  such  letters-patent  as  the  commissioners  may 
direct;  and  such  register,  or  a  copy  thereof,  is  to  be  open  at  all 
convenient  times  to  the  inspection  of  the  public,  subject  to  such 
regulations  as  the  commissioners  may  make.(c) 

Another  condition  formerly  inserted  in  letters-patent  rendered 
them  void,  in  case  the  letters-patent,  or  the  liberty  and  privileges 
thereby  granted,  should  become  vested  in  or  in  trust  for  more 
than  the  number  of  twelve  persons,  or  their  representatives,  at 
any  one  time,  as  partners,  dividing  or  entitled  to  divide  the  bene- 
*fit  or  profit  obtained  by  reason  thereof;  but  it  is  now  enacted 
that,  notwithstanding  any  proviso  that  may  exist  in  former  letters- 
patent,  it  shall  be  lawful  for  a  larger  number  than  twelve  persons 
hereafter  to  have  a  legal  and*  beneficial  interest  in  such  letters- 
patent.  (/) 

In  letters-patent  a  clause  is  usually  contained  forbidding  all 
persons  from  using  the  invention  without  the  consent,  license,  or 
agreement  of  the  inventor,  his  executors,  administrators,  or  as- 
sig-ns,  in  writino-,  under  his  or  their  hands  and  seals,  first  had  and 
obtained  in  that  behalf.(^)  The  granting  of  licenses  to  use  a  pat- 
ent is  *one  of  the  most  profitable  ways  of  turning  it  to  n^.-,,-,,^-. 
account.  All  licenses  are  now  required  to  be  registered  in  ^  -^ 
the  registry  to  be  presently  mentioned. 

Letters-patent  obtained  in  England  formerly  conferred  an  ex- 

{fl)  Sect.  29.  W   Sect.  34. 

(/)  Sect.  30.     See  post,  the  chiipter  on  Joint  Ownership  and  Joint  Liability. 

(A')   See  tie  form  of  Letters-Patent,  in  Appcndi.x  (A). 


314  OF   INCORPOREAL   PERSONAL   PROPERTY. 

elusive  privilege  only  within  England,  Wales,  and  the  town  of 
Berwick-upon-Tweed;  and  also  within  the  islands  of  Guernse}', 
Jersey,  Alderney,  Sark,  and  Man,  and  her  majesty's  colonies  and 
plantations  ahroad,  if  so  expressed  in  the  patent.  In  order  to  ob- 
tain the  like  exclusive  privilege  for  Scotland,  it  was  necessary  to 
obtain  separate  letters-patent  under  the  seal  appointed  by  the 
treaty  of  union  to  be  used  instead  of  the  great  seal  of  Scotland ; 
and  in  the  same  manner  the  like  privilege  for  Ireland  was  re- 
quired to  be  obtained  by  letters-patent  under  the  great  seal  for 
Ireland.  But  it  is  now  provided  that  letters-patent  shall  extend 
to  the  whole  of  the  United  Kingdom  of  Great  Britain  and  Ireland, 
the  channel  islands,  and  the  Isle  of  Man  ;  and  in  case  the  warrant 
for  granting  the  patent  shall  so  direct,  such  letters-patent  shall  be 
made  applicable  to  her  majesty's  colonies  and  plantations  abroad, 
or  such  of  them  as  may  be  mentioned  in  such  warrant.(A)  But 
where  separate  letters  for  England,  Scotland,  or  Ireland  have  been 
already  granted,  separate  letters-patent  may  still  be  granted  for 
the  other  countries,  on  payment  for  such  country  of  one-third  the 
stamp  duties  payable  for  a  patent  for  the  whole  kingdom. (i) 

Letters-patent  and  the  privileges  thereby  granted  are  freely 
assignable  from  one  person  to  another,  and  the  assignee  by  such* 
assignment  is  placed  in  the  same  position  as  his  assignor  pre- 
viously stood.*     The  assignee  may  consequently  bring  in  his  own 

(A)   Stat.  15  &  16  Vict.  o.  83,  s.  18.  (»)  Stat.  16  &  17  Vict.  c.  5,  s.  4. 

1  See  acts  of  Congress  of  the  4th  of  July,  of  the  thing  patented,  at  the  time  of  the  re- 

1836,  sec.  11,  and  of  the  3d  of  March,  1837,  newal,  has  still  a  right  to  use  it  ;  Wilson  v. 

sec.  6.  Rousseau  et  al.,  4  How.  R.  646  ;  Wilson  v. 

An  assignment  of  a  patent  right  may  be  Simpson  et  al.,  9  Id.  109  ;  Bloomer  v.  Mc- 
made  before  the  issuing  of  a  patent ;  Gayler  Quewan,  14  Id.  539  ;  Bloomer  v.  Millenger, 
et  al.  V.  Wilder,  10  How.  R.  477  ;  and  the  1  Wallace's  R.  340  ;  Chaffee  v.  Boston  Belt- 
assignee,  in  all  cases  taking  subject  to  the  ing  Co.,  22  How.  U.  S.  R.  217. 
legal  consequences  of  the  previous  acts  of  the  A  covenant  by  a  patentee,  made  prior  to 
assignor  (McClurg  v.  Kingsland  et  al.,  1  the  law  authorizing  extensions,  that  the 
How.  R.  202).  may  maintain  nn  action  in  his  covenantee  should  have  the  benefit  of  any 
own  name  ;  Brooks  et  al.  v.  Bicknell  etal.,  3  improvement,  or  alteration,  or  renewal  of  the 
McLean's  R.  250  ;  but  the  assignment  must  patent,  does  not  include  the  extension  ob- 
be  in  writing  ;  Gibson  v.  Cook,  2  Blatch.  C.  tained  by  an  administrator  under  the  act  of 
C.  R.  144  ;  an  extension  of  a  patent,  procured  1836,  but  only  the  renewal  obtained  upon  a 
by  the  executor  or  administrator  of  the  in-  surrender  of  the  patent,  on  account  of  a  defec- 
ventor,  does  not  enure  to  the  benefit  of  the  tive  specification  ;  Wilson  v.  Rousseau  et  al., 
assignees  ;  Wilson  v.  Rousseau  et  al.,  4  How.  4  How.  R.  646  ;  and  a  covenant,  by  which  a 
R.  646  ;  but,  an  assignee  who  was  in  the  use  licensee  will  become  entitled  to  an  extension 


OF    PATENTS   AND   COPYRIGHTS.  olo 

n^me  the  same  actions  and  suits  both  at  law  and  in  equity  against 
those  *who  have  infringed  upon  the  patent  as  the  patentee  ^^^990-1 
himself  might  have  done,(^)  The  privileges  granted  bj  *- 
letters-patent  are  therefore  plainly  an  instance  of  an  incorporeal 
kind  of  personal  property,  different  in  its  nature  from  a  mere 
chose  in  action,  which  never  has  been  assignable  at  law.  A  deed 
is  said  to  be  necessary  for  the  valid  legal  assignment  of  letters- 
patent;  but  the  author  is  not  aware  of  any  authority  for  this 
position  ;  and  the  general  rule  appears  to  be,  that  the  assignment 
of  incorporeal  f)ersonal  property  may  be  made  without  deed. 
Perhaps,  however,  the  necessity  of  an  assignment  by  deed  may 
be  implied  from  the  clause  in  the  letters-patent,  which  forbids 
the  use  of  the  invention  "  without  the  consent,  license,  or  agree- 
ment of  the  inventor,  his  executors,  administrators,  or  assigns,  in 
writing,  under  his  or  their  hands  and  seals,  first  had  and  obtained 
in  that  behalf."  All  assignments  of  letters-patent  are  now  re- 
quired to  be  registered  under  the  Patent  Law  Amendment  Act, 
1852.^ 

The  act  provides  that  there  shall  be  kept  at  the  ofhce  appointed 
for  filing  specifications  in  chancery  under  this  act,  a  book  or 
books  entitled  "  The  Register  of  Proprietors,"  wherein  shall  be 
entered,  in  such  manner  as  the  commissioners  shall  direct,  the 
assignment  of  any  letters-patent,  or  of  any  share  or  interest 
therein,  any  license  under  letters-patent,  and  the  district  to  which 
such  license  relates,  with  the  name  or  names  of  any  person  having 
any  share  or  interest  in  such  letters-patent  or  license,  the  date  of 

ik)   Godson  on  Patents,  237.     Walton  v.  Lavater,  8  C.  B.  N.  S.  162,  E.  C.  L.  R.  vol.  98. 

under  the  act  of  1836,  will  not  entitle  hina  to  with,  or  application  to,  one  class  of  subjects, 

an  extension  under  a  special  act ;  Bloomer  v.  and  to  another,  in  its  connection  with,  or  ap- 

StoUey,  6  McLean's  R.  158.  plication  to,  another  class  of  subjects,  to  such 

When  an  assignment  is  made  under  the  act  an  extent  that  purchasers  from  any  of  these 

of  Iftl'fi,  of  the  exclusive  right  within  a  speci-  persons,  may    not   use    the    thing   purchased 

Bed  part  of  the   country,  the   assignee   may  exactly  as  they  please  ;    Washing   Machine 

sue  in  his  own  name,  provided  the  assignment  Co.  v.  Earle,  3  Wallace,  Jr.  R. 

be  of  the  entire  and  unqualified  monopoly;  i   Act  of  Congress   of  4th  of  July,   ]83<i, 

but  any  assignment  short  of  this,  is  a  mere  sect.  11  ;  Gayler  et  al.  v.  Wilder,  10  How.  R. 

license,  and  will  not  carry  with  it,  a  right  to  477;   Wyeth  et  al.  v.  Stone  et  al.,  1  Slory's 

the  assignee  to  sue  in  his  own  name;   Gayler  R.  273;   Gibson  v.   Cook,  2  Blatch.  C    C.  R. 

et  al.  r.  Wilder,   10  How.   R.  477;  but  one  144;  but  the  registration  of  an  assignment  of 

cannot  divide  his  right  into  parts,  and  grant  a  patent  right,  is  not  necessary  as  between  the 

to  one  man  the  right  to  use  it  in  connection  parties;  Black  v.  Stone,  33  Ala.  R.  327. 


31 G  OF   INCORPOREAL   PERSONAL    PROPERTY. 

his  or  their  acquirino^  such  k^tiers-patent,  share,  and  interest,  a^cl 
any  other  matter  or  tliinij;  rehitino;  to  or  aftecting  the  proprietorship 
in  sncli  K'tters-patent  or  Ucense;  and  a  copy  of  any  entry  in  such 
hook,  certiticd  under  such  seal  as  may  have  heen  appointed,  or  as 
r*99J.n  ■^^^^•^  ^^  directed  by  the  Lord  Chancellor,  to  be  *used  in 
'-"'-'  the  said  office,  shall  be  given  to  any  person  requiring  the 
same,  on  payment  of  the  fees  therein  provided;  and  such  copies 
so  certitied  shall  be  received  in  evidence,  in  all  courts  and  in  all 
proceedings,  and  shall  be  prima  facie  proof  of  the  assignment  of 
such  letters-patent,  or  share  or  interest  therein,  or  of  the  license 
or  proprietorship  as  therein  expressed;  provided  always,  that  until 
such  entry  shall  have  been  made,  the  grantee  or  grantees  of  the 
letters-patent  shall  be  deemed  and  taken  to  be  the  sole  and  ex- 
clusive proprietor  or  proprietors  of  such  letters-patent,  and  of  all 
the  licenses  and  privileges  thereby  given  and  granted.(/)^ 

(/)   Stat.  15  &  16  Vict.  c.  8.3,  s.  35.     See  Green's  Patent,  24  Beav.  145;   Chollett  v.  Hoff- 
man, 7  E.  &  B.  086,  E.  C.  L.  R.  vol.  90. 

1  The    improvements    in    mechanics,    con-  3  Story's  R.  122;  Lowell  v.  Lewis,  1  Mas.  R. 

sist    of   new    adaptations    or    combinations,  182  ;  if,  however,  the  thing  patented  had  been 

of  the  six  primary  mechanical  powers ;   but  previously    known    and    used,    the   patent  is 

any   combination   of  mere   theory,    existing  void;  Bedford  t;.  Hunt  et  al.,  1  Mas.  R  302  ; 

only  in   the  brain  of  the  inventor,  and  not  Shaw  v.  Cooper,  7  Pet.  R.  292;  Whitney  et 

rendered  effective  practically  and  materially,  al.  i'.  Emmett  et  al.,  1  Baldw.  R.  303;  Morris 

althoujjh  its  advantages,  and  its  usefulness  to  v.  Huntington,  1  Paine's  C.  C.  R.  348;   Pen- 

the  public,  may  be  demonstrated  with  mathe-  nock  et  al.  v.  Dialogue,  2  Pet.  R.  1  ;  Reed  v. 

matical  certainty,  cannot  be  the  subject  of  a  Cutter  et  al.,  1  Story's  R.  590  ;  for  the  appli- 

patent,  being  merely  an  abstract  principle  ;  cant  must  be  the  sole  inventor  ;  Thomas  v. 

Odwine  v.  AVinkley,  2  Gall.  R.  51 ;  Blanchard  Weeks,  2  Paine's  C.  C.  R.  92  ;  and  this  is  the 

V.  Sprague,  3  Sumn  R.  535  ;  Stone  v.  Sprague  case,  even  where  the  inventor  was  entirely  ig- 

et   al.,    1    Story's   R.    270;    Smith  v.   Ely,   5  norant  of  such  previous  use ;  Evans  v.  Eaton, 

McLean's  R.   76.     In  the  case  of  Le  Roy  et  3  Wheat.  R.  454,  S.  C.  1  Pet.  C.  C.  R.  322, 

al.  V.  Tatham  et  al.,  14  How.  R.  156,  Justice  Dawson  v.    FoUen,    2   Wash.    C.   C.  R.  .311  ; 

McLean  snj's  :  "A  principle  is  not  patentable.  Delano  v.  Scott,  Gilp.  R.  489;  so,  where  an 

A  principle  in  the  abstract,  is  a  fundamental  original  inventor  allows  his  invention  to  be 

truth  ;    an   original   cause  ;   a  motive  ;   these  used  by  the  public,  this  is  considered  as  an 

cannot  be  patented,  as  no  one  can  claim  in  abandonment  of  his  right,  and  of  course  will 

either  of  them  an  exclusive  right  .    .   .   the  furnish  a  good  objection  to  his  obtaining  a 

elements  of  power  existing,  the  invention  is  patent;   Gayler  et  al.  v.  Wilder,  10  How.  R. 

not   in    discovering   them,   but   in    applying  477;  Sbiiw  v.  Cooper,  7  Pet.  R.  292  ;  Whitte- 

them   to  useful   objects."     But  the  original  more  et  al.  v.  Cutter,  1  Gall.  R.  478;   Melius 

inventor  of  an   abstract  principle,    who   has  v.  Sil.'ibee,  4  Mas.  R.  108  :  Pennock  et  al.  v. 

reduced  it  to  a  practical  and  useful  form,  is  Dialogue,  2  Pet.  R.  1  ;  but  it  should  be  clearly 

entitled  to  a  patent ;  Woodcock  v.  Parker  et  established  by  proof,  that  such  public  use  was 

al.,  1  Gall.  R.  438  ;   Bedford  v.  Hunt  et  al.,  1  with   the   knowledge  and  consent  of  the  in- 

Mas.  R.  302;  Le  Roy  et  al.  t>.  Tatham  et  al.,  ventor  ;  neither  acts  alone,  nor  declarations 

14  How.  R.  156  ;   AVashburn  et  al.  v.  Gould,  alone,  being  sufficient  to  prove  an  abandon- 


OF    PATENTS    AND    COPYRIGHTS. 


317 


Closely  connected  with  the  subject  of  patents  is  that  of  copy- 


ment ;  McCormick  v.  Seymour,  2  Blatch.  C. 
C.  R.  194  ;  and  the  mere  user  by  the  inventor 
of  his  discovery,  in  trying  experiments,  or  by 
his  neighbors,  with  his  consent,  as  an  act  of 
kindness,  for  temporary  and  occasional  pur- 
poses only,  will  not  destroy  the  right  of  the 
discoverer  to  a  patent ;  Wj-eth  et  al.  v.  Stone 
et  al.,  1  Story's  R.  27.3;  Winans  v.  Schenec- 
tady and  Troy  Railroad  Company,  2  Blatch. 
C.  C.  R.  229;  nor  experiments  made  by  an- 
other, although  those  experiments  led  to  the 
invention  subsequently  patented;  Allen  v. 
Hunter,  6  McLean's  R.  303  ;  but  the  use  of 
several  machines  in  public,  for  more  than  two 
years  prior  to  applying  for  a  patent,  slightly 
varying  in  form  and  arrangement,  yet  sub- 
stantially the  same  as  afterwards  patented, 
cannot  be  alleged  as  experimental,  so  as  to 
avoid  the  consequences  of  such  prior  use ; 
Sanders  v.  Logan  et  al.,  9  Am.  L.  Reg.  476  ; 
so,  too,  the  inventor  will  not  be  deprived  of 
his  patent,  where  the  knowledge  of  the  dis- 
covery is  surreptitiously  obtained  and  com- 
municated to  the  public  ;  Shaw  v.  Cooper,  7 
Pet.  R.  292  ;  Whitney  et  al.  v.  Emmett  et  al., 
]  Baldw.  R.  303  ;  Ryan  et  al.  v.  Goodwin  et 
al.,  3  Sumn.  R.  514 ;  and  in  like  manner,  any 
intermediate  knowledge  or  use,  between  the 
time  of  discovery  and  the  application  for  a 
patent,  by  a  subsequent  inventor,  will  not 
deprive  the  original  discoverer  of  his  right  to 
a  patent,  who  is  during  that  time  perfecting 
his  invention,  or  using  due  diligence  to  secure 
his  patent ;  Whitney  et  al.  v.  Emmett  et  al., 
1  Baldw.  R.  303  ;  Morris  v.  Huntington,  1 
Paine's  C.  C.  R  348;  Reed  v.  Cutter  et  al., 
1  Story's  R.  590;  nor,  on  the  other  hand,  will 
the  idea  of  the  discovery,  though  it  has  oc- 
curred to  others,  deprive  the  invention  of  its 
originality,  unless  the  idea  had  been  embodied 
in  a  practical  form;  Teese  v.  Phelps,  1  McAll. 
C.  C.  R.  48. 

A  previous  discovery  in  a  foreign  country, 
will  not  render  a  patent  obtained  here  void, 
unless  such  discovery  had  been  patented,  or 
described  in  a  printed  publication;  O'Reilly 
et  al.  V.  Morse  et  al.,  15  How.  R.  03  ;  Brooks 
et  al.  V.  Bicknell  et  al.,  3  McLean's  R.  250. 

If  a  machine  produce  several  different  ef- 
fects by  a  particular  combination  of  machin- 
ery,  and   these  effects  are   produced   in    the 


same  way  in  another  machine,  and  a  new 
effect  added,  the  inventor  of  the  latter  is  not 
entitled  to  a  patent  for  the  whole  of  the 
machine,  but  merely  for  the  improvement; 
Whittemore  et  al.  v.  Cutter,  1  Gall.  R.  478; 
Odwine  v.  Winkley,  2  Id.  51  ;  Barrett  et  al. 
V.  Hall  et  al.,  1  Mas.  R.  447  ;  Goodyear  v. 
Matthews,  1  Paine's  C.  C.  R.  300  ;  and  for  each 
improvement  of  a  machine,  there  must  be  a 
separate  patent;  Barrett  et  al.  v.  Hall  et  al., 
1  Mas.  R.  447;  McCormick  v.  Taleott,  20 
How.  U.  S.  R.  402 ;  and  a  claim  for  a  com- 
bination of  several  devices,  so  as  to  produce  a 
particular  result,  is  not  good  for  a  claim  for 
any  mode  of  combining  those  devices;  Case 
V.  Brown,  2  Wallace's  R  320  ;  Burr  v.  Duryee 
1  Id.  531. 

The  description  contained  in  the  specifica- 
tion, must  be  so  clear,  that  any  one  skilled  in 
the  art  to  which  it  appertains,  may  compound 
or  use  the  thing  patented,  without  making  ex- 
periments ;  Wood  V.  Underbill,  5  How.  R.  1  ; 
Gray  et  al.  v.  James  et  al.,  1  Pet.  C.  C.  R. 
394.  In  the  case  of  Lowell  v.  Lewis,  1  Mas. 
R.  182,  however,  it  was  decided,  that  if  the 
invention  be  definitely  described  in  the  pat- 
ent, so  as  to  distinguish  it  from  what  is  be- 
fore known,  the  patent  will  be  good,  though 
the  specification  does  not  describe  the  inven- 
tion, in  such  full,  exact,  and  clear  terms,  that 
a  person  skilled  in  the  art  or  science  of  which 
it  is  a  branch,  could  construct  or  make  the 
thing  invented  ;  but  the  invention  must  be 
so  clearly  described,  as  to  enable  the  public 
to  appropriate  it,  after  the  expiration  of  the 
patent  right;  Sullivan  v.  Redfield  et  al., 
1  Paine's  C.  C.  R.  441  ;  Evans  «.  Chambers,  2 
Wash.  C.  C.  R.  125  ;  Ames  v.  Howard  et  al., 
1  Sumn.  R.  482. 

If  a  patent  has  been  granted  upon  a  speci- 
fication defective  by  reason  of  its  obscurity, 
the  i)roper  course  is  to  surrender  the  patent 
and  take  out  a  new  one  ;  Stimpson  v.  The 
West  Chesler  R.  R.  Co.,  4  How.  R.  380  ; 
Wilson  V.  Rousseau  et  al..  Id.  646  ;  Odwine 
V.  The  Amesbury  Nail  Factory,  2  Mas.  R. 
28  ;  and  the  second  patent  will  be  considered 
as  emanating,  at  the  time  the  first  was 
granted;  Shaw  v.  Cooper,  7  Pet.  R.  292; 
Morris  v.  Huntington,  1  Paine's  C.  C.  R. 
348  ;   Grant  et   al.    v.    Raymond,   f)   Pet.    R. 


318  OF    IXCOIU'OKEAL   PERSONAL    PROPERTY. 

right.^     Copyright  may  be  defined  to  be  the  exclusive  right  of 

218  ;  The  Philadelphia  and  Trenton  R.  R.  Co.  invent,  design,  etch,  engrave,  work,  or  cause 
V.  Stimpson,  14  Pet.  R.  448;  Godfrey  v.  to  be  engraved,  any  print  or  engraving,  and 
Eanie.s,  1  Wallace's  R.  317.  the  executor  or  executors  of  such  person  or 
If  a  patent  includes  more  than  the  actual  persons,  shall  have  the  sole  right  of  printing, 
invention,  it  is  void;  Wood  v.  Underhill  et  reprinting,  publishing,  and  vending  the  same, 
al.,  5  How.  R.  1  ;  O'Reilly  et  al.  v.  Morse  et  for  the  term  of  twenty-eight  years  from  the 
al.,  15  Id.  fi.S  ;  Whitney  et  al.  v.  Eramett  et  time  of  recording  the  title  thereof;  and  by 
al.,  1  Baldw.  R.  303;  Batten  v.  Taggart,  2  the  second  section  of  the  same  act,  the  ex- 
Wallace,  Jr.  R.  101;  and  the  proper  course  elusive  use  above  mentioned,  may  be  renewed 
under  these  circumstances,  is  for  the  inventor  after  the  expiration  of  the  said  twenty-eight 
to  enter  a  disclaimer  for  the  excess.  See  years,  for  the  additional  term  of  fourteen 
aute,  p.  220,  note.  years,  and  if  said  person  or  persons  shall  be 
Nothing  useless  or  frivolous,  or  injurious  dead,  then  to  the  widow,  or  child,  or  children, 
to  the  moral  health  or  comfort  of  society,  can  of  such  deceased  person.  The  fourth  and 
be  the  subject  of  a  patent  :  Bedford  v.  Hunt  fifth  sections  of  the  same  act,  point  out  the 
et  nl.,  1  Mas.  R.  302;  Whitney  et  al.  v.  manner  in  which  application  for  a  copyright 
Emmett  et  a!.,  1   Baldw.  R.  303;   Lowell  v.  must  be  made  • 

Lewis,  1  Mas.  R.  182  ;  Langdou  v.  De  Groot,         "Sect.  4.  And  be  it  further  enacted.  That 

1   Paine's  C    C.  R.  203  ;  consequently,  where  no  person  shall  be  entitled  to  the  benefit  of 

the    principle    of  two    machines    is    entirely  this  act,  unless  he  shall,  before  publication, 

similar,   and   the  only  difference  consists,  in  deposit  a  printed  copy  of  the  title  of  such 

the    latter    being    constructed    of    materials  book,  or  books,  map,  chart,  musical  compo- 

better  adapted  to  the  purposes  for  which  it  sition,  print,  cut,  or  engraving,  in  the  clerk's 

was  made  thnn  the  former,  it  was  not  consid-  oiEce  of  the  District   Court   of    the    district 

ered  as  entitled  to  a  patent,  not  being  suf-  wherein  the  author  or  proprietor  shall  re!?ide, 

ficiently   useful  ;  Hotebkiss  et  al.  v.  Green-  and  the  clerk  of  said  court  is  hereby  directed 

wood   et  al.,  11   How.  R.   266;  Stimpson  v.  and  required,  to  record  the  same  thereof  foith 

The  Baltimore  and  Susquehanna  R.  R.  Co.,  with,  in  a  book  to  be  kept  for  that  purpose, 

10  Id.  343.  in  the  words  following  (giving  a  copy  of  the 

On  the  subject  of  infringements  of  patents,  title  under  the  seal  of  the  court,  to  the  said 

see  MeClurg  et  al.  «.  Kingslandet  al.,  1  How.  author  or  proprietor,  whenever  he  shall  re 

R.  202  ;  Gayler  et  al.  v.  Wilder,  10  Id.  477  ;  quire  the  same):  '  District  of  ,  to  wit : 

Wilson   V.    Barnum,    8    Id.   258  ;  Silsbee   v.  Be  it  remembered,  that  on  the day  of 

Foote,  14  Id.   219;  Gray  et  al.  v.  James  et  ,  Anno  Domini ,  A.   B.,  of  the 

al.,  1  Pet.  C.  C.  R.  394  ;  Dixon  v.  Moyer,  4  said  district,  hath  deposited  in  this  ofiSce  the 
Wash.  C.  C.  R.  69;  Sawin  et  al.  v.  Guild,  1  title  of  a  book  (map,  chart,  or  otherwise,  as 
Gall.  R.  485;  Evans  v.  Jordan  et  al.,  1  the  case  may  be),  in  conformity  with  an  act 
Brockenb.  R.  248  ;  Livingston  &  Co.  v.  of  Congress,  entitled.  An  act  to  amend  the 
Jones  &.  Co.,  3  Wallace,  Jr.  R.;  Batten  v.  several  acts  respecting  copyrights.  C.  D., 
Silliman,  lb.;  Jones  v.  Morehead,  1  Wal-  Clerk  of  the  District.'  For  which  record  the 
lace's  R  155,-  Kendall  v.  Winsor,  21  How.  clerk  shall  be  entitled  to  receive,  from  the 
U.  S.  R.  322.  person  claiming  such  right  as  aforesaid,  fifty 
1  The  acts  of  Congress  of  the  31st  of  May,  cents  ;  and  the  like  sum  for  every  copy  under 
1790,  and  the  29th  of  April,  1802,  are  re-  seal,  actually  given  to  such  person  or  his  as- 
pealed  by  the  act  of  February  3d,  1831  ;  (4  signs.  And  the  author  or  proprietor  of  any 
Stat,  at  Large,  436).  By  the  first  section  of  such  book,  map,  chart,  musical  composition, 
the  last- mentioned  act,  any  person  or  per-  print,  cut,  or  engraving,  shall,  within  three 
sons,  being  a  citizen  or  citizens  of  the  United  months  from  the  publication  of  said  book, 
States,  or  resident  therein,  who  shall  be  the  map,  chart,  musical  composition,  print,  cut, 
author  or  authors  of  any  book  or  books,  map,  or  engraving,  deliver,  or  cause  to  be  delir- 
chart,  or  musical  composition,  or  who  shall  ered,  a  copy  of  the  same  to  the  clerk  of  said 


OF    PATENTS   AND   COPYRIGHTS.  319 

multiplying  copies  of  an  original  work  or  composition.(?7?)  From 
the  nature  of  this  right  it  must  almost  necessarily  have  had  its 
origin  at  a  period  subsequent  to  the  invention  of  the  art  of  print- 
ing. It  is,  however,  the  better  opinion  that  such  a  right  existed 
prior  to  the  statute  of  Anne,(??.)  by  which  the  term  of  an  author's 
copyright  was  first  limited  by  the  legi8lature,(o)  But  this  statute, 
together  with  others  by  which  the  copyright  of  authors  was  fur- 
ther secured,(2>)  has  been  repealed  by  the  act  of  the  present  reign 
to  amend  the  law  of  copyright,  on  wliich  the  law  of  copyright 
now  depends.(^)  By  this  act  the  copyright  of  every  book  (which 
term  includes  for  the  purposes  of  the  act  every  pamphlet,  sheet  of 
letter-press,  sheet  of  music,  map,  chart,  or  plan)  published  after 
the  passing  of  the  act  in  the  lifetime  of  the  author  shall  endure 
for  his  natural  *life,  and  for  the  further  term  of  seven  r*225-] 
years  from  his  death,  and  shall  be  the  property  of  such 

(jn)  14  M.  &  W.  316.  ,  (m)   8  Anne,  c.  19. 

(o)   Miller  v.  Taylor,  4  Burr.   2.303;  Donaldson  v.  Beckett,  4  Burr.  2408;   2  Bro.  P.  C. 
129  ;  Boosey  v.  Jefferys,  6  Exch.  Rep.  592. 

ip)  41  Geo.  Ill,  c.  107  ;  54  Geo.  Ill,  c.  156.  (?)   5  &  0  Vict.  c.  45. 


district.    And  it  shall  be  the  duty  of  the  clerk  to  the  author  or  proprietor  of  any  dramatic 

of  each  District  Court,  at  least  once  in  every  composition,   designed   or   suited    for    public 

year,  to  transmit  a  certified  list  of  all  such  representation,  shall  be  deemed  and  taken  to 

records  of  copyright,  including  the  titles  so  re-  confer  upon  the   said   author   or  proprietor, 

corded;  and  the  date  of  record,  and  also  all  the  his  heirs  or  assigns,  along  with  the  sole  right 

several  copies  of  books,  or  other  works,   de-  to    print  and   publish  the  said  composition, 

posited  in  his  office  according  to  this  act,  to  the  the  sole  right  also  to  act,  perform,  or  repre- 

secretary  of  state,  to  be  preserved  in  his  office,  sent  the  same  in  public,  during  the  period  for 

"And  be  it  further  enacted,  That  no  per-  which  the  copyright  is  obtained, 

son  ihiiU  be  entitled  to  the  benefit  of  this  act.  By  the  first  section  of  the  act  of  Congress 

unless  he  shall  give  information  of  copyright  of  March  3d,  1865  (13  Stats,  at  Large,  540), 

being  secured,  by  causing  to  be  inserted,  in  the   provisions  of  the   act   of  February  3d, 

the  copies  of  each  and   every   edition  pub-  1831,   are  extended  to  photographs,   and  the 

lished  during  the  term  secured,  on  the  title  negatives  thereof. 

page,  or  the  page  immediately  following,  if  it  And  by  the  second  and  third  sections  of  the 

be  a  book,  or,  if  a  map,  chart,  musical  com-  same  act,  the  author  or  proprietor  is  required 

position,  print,  cut,  or  engraving,  by  causing  to  send  a  copy  of  his  work,  to  the  Congress 

to  be  impressed  on  the  face  thereof,  or,  if  a  library,  within  one  mouth  after  publication, 

volume   of  m>ips,  charts,   music,   or  engrav-  under  forfeiture  of  his  copyright, 

ing.i,   upon  the  title  or  frontispiece  thereof,  See  for  construction  of  these  acts,  Jollin  v. 

the  following  words,  viz. :  '  Entered  according  Jacques  et  al.,  1  Blatch.  R.  618  ;  Wheaton  et 

to    act  of  Congress  in    the   year  ,   by  al.   v.  Peters  et  al.,  8  Pet.  R.  591 ;   Baker  v. 

A.  B.,   in    the   clerk's  office  of  the    District  Taylor,  2  Blatch.  C.  C.  R.  82. 

Court  of  ,'  "  (as  the  case  may  be).  On  the  subject  of  the  old  acts  of  1790  and 

By  the  first  section  of  the  act  of  18th  of  1802,  see  Nichols  v.  Ruggles   et  al.,  3   Day's 

Augu.st,  1856  (11  Stat,  at  Large,  138),  itispro-  Conn.   R.  145  ;  Ewer  et  al.   w.  Coxe  et  al,  4 

vidcd.  That  any  copyright  hereafter  granted  Wash.  C.  C.  R.  478. 


320        OF  INCORPOREAL  PERSONAL  PROPERTY. 

author  and  Lis  assigns;  but  if  the  term  of  seven  years  shall  ex- 
pire before  the  end  of  forty-two  years  from  the  first  publication 
of  the  book,  the  copyright  shall  in  that  case  endure  for  such 
period  of  forty-two  years;  and  the  copyright  in  every  book  pub- 
lished after  the  death  of  its  author  shall  endure  for  forty-two 
years  from  the  first  publication  thereof.(r)  By  the  same  act  the 
existing  copyright  in  books  then  published  is  extended  for  the 
full  term  provided  by  the  act  in  the  case  of  books  thereafter  pub- 
lished. But  if  the  copyright  belong  wholly  or  partly  to  a  pub- 
lisher or  other  person,  who  has  acquired  it  for  any  other  consid- 
eration than  that  of  natural  love  and  affection,  the  copyright  is 
not  to  be  extended  by  the  act,  unless  the  author,  if  living,  or  his 
personal  representative  if  he  be  dead,  and  the  proprietor  of  such 
copyright,  shall,  before  the  expiration  of  the  subsisting  term  of 
copyright,  consent  and  agree  to  accept  the  benefits  of  the  act, 
and  shall  register  a  minute  of  such  consent  in  the  prescribed 
form;  in  which  case  the  cop^^right  shall  endure  for  the  full  term 
provided  by  the  act,  and  shall  be  the  property  of  the  person  or 
persons  expressed  in  the  minute. (5)  And  in  order  to  provide 
against  the  suppression  of  books  of  importance  to  the  public,  the 
judicial  committee  of  the  privy  council  are  authorized,  on  com- 
plaint made  to  them,  that  the  proprietor  of  the  copyright  in  any 
book,  after  the  death  of  its  author,  has  refused  to  allow  its  repub- 
lication, to  grant  a  license  to  the  complainant  to  publish  the  book 
in  such  manner  and  subject  to  such  conditions  as  they  may  think 
fit.(i^)  And  with  regard  to  encyclopaedias,  reviews,  and  other 
periodical  works,  it  is  provided,  that  the  copyright  in  every  arti- 
r*ooci  ^^^  shall  belong  to  the  proprietor  of  the  work  *for  the 
'-  *"  -^  same  term  as  is  given  by  the  act  to  authors  of  books, 
whenever  any  such  article  shall  have  been  or  shall  be  composed 
on  the  terms  that  the  copyright  therein  shall  belong  to  such  pro- 
prietor and  be  paid  for  by  him  ;(m)  but  payment  must  be  actually 
made  by  the  proprietor  before  the  copyright  can  vest  in  him  ;{x) 
and  after  the  term  of  twenty-eight  years  from  the  first  publication 
of  any  such  article,  the  right  of  publishing  the  same  in  a  separate 

(r)   Stat.  5  &  6  Vict.  c.  45,  s.  3.  {t)  Sect.  5. 

(s)   Sect.  4. 

(n)   See  Bishop  of  Hereford  v.  Griffin,  16  Sim.  190  ;   Sweet  v.  Benning,  16  C.  B.  459,  E. 
C.  L.  R.  vol.  81. 

(x)  Riehard.son  v.  Gilbert,  ]  Sim.  N.  S.  336. 


OF    PATENTS    AND    COPYRIGHTS.  321 

form  shall  revert  to  the  author  for  the  remainder  of  the  term 
given  by  the  act;  and  during  such  term  of  twenty-eight  years 
the  proprietor  shall  not  publish  any  such  article  separately  with- 
out previously  obtaining  the  consent  of  the  author  or  his  assigns. 
But  any  author  may  reserve  to  himself  the  right  to  publish  any 
such  composition  in  a  separate  form,  and  he  will  then  be  entitled 
to  the  copyright  in  such  composition  when  published  separately, 
without  prejudice  to  the  right  of  the  proprietor  of  the  encyclo- 
psedia,  review,  or  other  periodical  in  which  it  may  have  first  ap- 
peared, (y)  By  the  same  act  the  sole  liberty  of  representing  any 
dramatic  piece  at  any  place  of  dramatic  entertainment,  and  of 
performing  any  musical  composition  in  any  pubhc  place,(^)  is 
secured  to  the  author  and  his  assigns  for  the  same  term  as  is  pro- 
^dded  for  the  duration  of  copyright  in  books. (a)  The  property 
in  dramatic  works  had  previously  been  secured  to  the  authors 
for  a  shorter  period  by  an  act  of  the  reign  of  King  William  the 
Fourth.(6)  It  is  now  decided  that  a  foreigner  residing  abroad  is 
not  entitled  to  the  copyright  of  any  work  composed  by  him  and 
first  published  in  this  country;  but  a  foreigner  residing  in  Eng- 
land at  *the  time  of  the  first  publication  of  his  work  is 
entitled  to  the  copyright. ((?y  ■-        -^ 

{y)   Stat.  5  &  6  Vict.  c.  45,  s.  18. 

(2)  Russell  V.  Smith;  15  Sim.  181 ;   12  Q.  B.  217,  E.  C.  L,  R.  vol.  64. 

(a)  Sect.  20. 

(b)  3  &  4  Will.  IV,  c.  15.     See  Morton  v.  Copeland,  16  C.  B.  517,  E.  C.  L.  R.  Vol.  81. 

(c)  Jefferys  v.  Boosey,  H.  of  Lords,  1  Jur.  N.  S.  615  ;  4  H.  of  L.  Cas.  815. 

1  In  the  recent  case  of  Low  v.  Routledge,  purchase-money  for  the  manuscript  and  copy- 
as  reported  in  the  Weekly  Reporter  of  Decern-  right  of  the  said  production  ;  and  thereupon 
her  2d,  1865,  vol.  xiv.  p.  90,  it  was  decided  she  signed  at  Montreal,  and  from  thence 
that  an  alien  friend,  coming  into  a  British  transmitted  to  the  plaintiffs,  due  authority 
colony,  and  residing  there  for  the  purpose  of  for  enabling  them  to  procure  entries  of  her 
acquiring  copyright,  during  and  at  the  time  proprietorship  in  the  copyright,  and  of  an 
of  the  publication  .in  England,  of  a  work  assignment  thereof  by  her  to  the  plaintiffs, 
composed  by  him,  and  first  published  in  that  pursuant  to  statute.  It  was  alleged  also, 
country,  is  entitled  to  copyright  in  England  that  the  book  was  printed  and  published  on 
in  the  work  so  published,  though  he  may  not,  the  2.3d  day  of  May,  1864. 
under  the  laws  in  force  in  the  colony  where  The  principle,  however,  above  alluded  to, 
he  is  residing,  be  entitled  to  copyright  there,  did  not  control  the  case,  which  went  oflf  on  a 

The  facts  of  this  case  were  the.se  :  Maria  S.  demurrer,  on  the  ground  that  in  the  entry  of 

Cummin?,  author  of  the  story  called  "  Haunted  the  proprietorship  of  the  copyright^  the  name 

Hearts,-'  was  a  native  of  this  country,  but  in  of  the  plaintitTs  firm  was  different  from  the 

April  and  May  of  1864,  resided  in  Montreal",  name  stated  in  the  bill  ;  and,  that  the  date  of 

Canada.       In     the     month    of    April,    1864,  publication  was  untruly  stated. 

Sampson,  Low,   Son   &  Co.,  of  London,   the  Set  post,  p.  231,  note, 
plaintiffs,  paid  the  said  M.  S.  Cummins,  the 

21 


822        OF  INCORPOREAL  PERSONAL  PROPERTY. 

By  the  same  act  a  book  of  registry  is  required  to  be  kept  at 
Stationers'  Hall,  open  to  public  inspection  on  payment  of  asnuiU 
fee,  in  which  may  be  registered  the  proprietorship  and  assign- 
ment of  C{)pynghts.((^)  And  no  proprietor  of  copyright  in  any 
book  which  shall  be  tirst  published  after  the  passing  of  the  act 
can  maintain  any  action  or  suit  at  law  or  in  equity,  or  any  sum- 
mary proceeding,  in  respect  of  any  infringement  of  such  copy- 
right, unless  he  shall,  before  commencing  such  action,  suit  or 
proceeding,  have  caused  such  book  to  be  registered  pursuant  to 
the  act ;  but  the  omission  to  register  will  not  affect  the  copyright 
in  the  book,  but  only  the  right  to  sue  or  proceed  in  respect  of 
the  infringement  thereof.  And  the  remedies  of  the  proprietors 
of  the  sole  liberty  of  representing  any  dramatic  piece  under  the 
above-mentioned  act  of  Will.  IV,  are  not  to  be  prejudiced,  al- 
though no  entry  shall  be  made  in  the  register  book.(f?)  And 
every -registered  proprietor  is  empowered  to  assign  his  interest 
by  making  entry  in  the  book  of  registry  of  such  assignment  and 
of  the  name  and  place  of  abode  of  the  assignee,  in  the  form  given 
in  a  schedule  to  the  act ;  and  such  assignment  so  entered  is  de- 
clared to  be  effectual  in  law  to  all  intents  and  purposes  whatso- 
ever, without  being  subject  to  any  stamp  or  duty,  and  to  be  of 
the  same  force  and  effect  as  if  such  assignment  had  been  made 
by  deed.(/)*     But  if  the  right  of  representing  any  dramatic  piece 

(d)  5  A  6  Vict.  c.  45,  ss.  11,  19,  20.  See  Ex  parte  Davidson,  18  C.  B.  297,  E.  C.  L.  R. 
vol.  86  ;  Ex  parte  Davidson,  2  E.  i  B.  577,  qii.  ?  E.  C.  L.  R.  vol.  75. 

(e)  Sect.  24.  (/)  Sect.  13. 

^  The  first  section  of  an  act  of  Congress,  of  of  the  renewal  of  his  right,  unle.=s  it  is  clearly 
the  .SOth  of  June,  1834  (4  Statutes  at  Large,  indicated  that  such  future  righj.  shall  also  be 
728),  directs  that  deeds  of  assignment  of  assigned;  this  is  based  upon  the  principle, 
copyrights,  being  acknowledged  in  the  man-  that  the  laws  were  intended  for  the  benefit  of 
ner  usual  with  deeds  for  the  conveyance  of  the  authors  themselves ;  Pierpont  v.  Fowle,  2 
land,  shall  be  recorded  in  the  oflBce  in  which    Wood.  <t  Min.  R.  23. 

the    original  copyright    is   recorded,    within        Where  a  non-resident  alien,  author   of  an 
sixty  days  after  the  assignment.  unprinted  comedy,  had   for  a  valuable  con- 

But  the  as.^ignment,  if  not  recorded,  is  ne-  sideration  transferred  his  proprietorship  of 
vertheless  valid  as  between  the  parties,  and  it  for  the  United  States,  to  a  resident  of  New 
also,  as  to  all  persons  not  claiming  under  the  York,  who  adopted  measures  for  procuring  a 
assignors  ;  Webb  et  al.  v.  Powers  et  al.,  2  copyright,  and  in  the  meantime  represented 
Wood.  &  Min.  R.  497.  the   comedy,    somewhat    modified,    upon   the 

An  assignment  made  by  one  entitled  to  a  public  stage,  it  was  held,  that  the  assignee 
copyright,  will  only  convey  the  present  right  could  not  su.^tain  a  suit  under  the  statutes  of 
of  the  author,  and  will  not  cover  any  future  the  United  State.<5,  against  one,  who,  having 
right  to  which  he  may  be  entitled,  by  reason    obtained    bis    knowledge  from    the    English 


OF   PATENTS    AND    COPYRIGHTS.  323 

or  performing  any  musical  composition  is  intended  to  pass  to  the 
assignee  of  tlie  copyright,  an  entry  must  be  expressly  made  of 
such  intention. (^) 

*The  act  also  expressly  provides,  that  all  copyrights  r;^nf>nn 
protected  by  the  act  shall  be  deemed  personal  property,  ^  -^ 
and  shall  be  transmissible  by  bequest;  or,  in  case  of  intestacy, 
shall  be  subject  to  the  same  laws  of  distribution  as  other  personal 
property,  (/i) 

In  order  to  give  more  eiffectual  protection  to  persons  entitled 
to  the  copyright  of  books,  it  is  also  provided  that  no  person,  not 
being  the  proprietor  of  the  copyright,  or  some  person  authorized 
by  him,  may  import  into  any  part  of  the  United  Kingdom,  or 
into  any  other  part  of  the  British  dominions,  for  sale  or  hire,  any 
printed  book  first  composed  or  written  or  printed  and  published 
in  any  part  of  the  United  Kingdom,  wherein  there  shall  be  copy- 
right, and  reprinted,  in  any  country  or  place  whatsoever  out  of 
the  British  dominions.(f)  And  by  subsequent  act8,(j)  books, 
wherein  the  copyright  is  subsisting,  first  composed  or  written  or 
printed  in  the  United  Kingdom,  and  printed  or  reprinted  in  any 
other  country,  are  absolutely  prohibited  to  be  imported  either 
into  the  United  Kingdom  or  into  the  British  possessions  abroad, 
provided  the  proprietor  of  such  copyright,  or  his  agent,  shall 
have  given  notice  in  writing  to  the  commissioners  of  customs 
that  such  copyright  subsists,  and  in  such  notice  shall  have  stated 
when  the  copyright  will  expire.  But  by  another  act(A;)  it  is  pro- 
vided, that  in  case  the  proper  legislative  authorities  in  any  British 
possession  shall  make  any  act  or  ordinance  to  make  due  provision 
for  securing  the  rights  of  British  authors  in  such  possession,  her 
majesty,  on  the  same  being  transmitted  to  the  Secretary  of  State, 

(g)  Sect.  22.  •  (i)   Sect.  17. 

(/<)  Stat.  5  &  6  Vict.  c.  45,  s.  25. 

(j)  Stat.  8  &  9  Vict.  c.  93,  s.  9 ;  and  16  <i,  17  Vict.  c.  107,  ss.  44,  160. 

(A)  Stat.  10  &  11  Vict  c.  95. 


copy,  and  from  witne.=sing  the  performance  valuable  as  an  assignment  for  the  United 
in  New  York,  was  representing  the  comedy  States,  of  such  literary  property  as  could  ax- 
on the  stage  in  another  city.  But  it  was  also  i.st  in  his  composition,  and  that  consequently 
held,  that  notwithstanding  the  foreign  au-  the  suit  could  be  maintained  before  an  equit- 
thor's  assignment,  was  at  law  nothing  more  able  tribunal;  Keene  v.  WheaUey  et  al.,  9 
than  a  mere  license,  it  was  still,  in  equity,  Am.  L.  Ileg.  33. 


324  OF   INCORPOREAL    PERSONAL   PROPERTY. 

may,  if  she  think  fit  so  to  do,  express  her  royal  approval  of  such 
act  or  ordinance,  and  therenpon  may  issue  an  order  in  council 
declaring  that,  so  long  as  the  provisions  of  such  act  or  ordinance 
*continue  in  force  Avithin  such  colony,  the  prohibitions 
■-  '^  -^  contained  in  the  above-mentioned  acts,  or  in  any  other 
acts,  with  respect  to  foreign  reprints  of  books  first  composed, 
written,  printed  or  published  in  the  United  Kingdom,  and  en- 
titled to  copyright  therein,  shall  be  suspended  so  far  as  regards 
such  colony;  and  thereupon  such  act  or  ordinance  shall  come 
into  operation,  except  so  far  as  may  be  otherwise  provided  there- 
in, or  as  may  be  otherwise  directed  by  such  order  in  council.(?) 

By  acts  of  Parliament  of  an  older  date,  copyright  has  also 
been  created  in  prints,  engravings,  maps,  charts,  and  plans,  for 
the  term  of  twenty-eight  3'ears,  to  commence  from  the  day  of  first 
publishing  thereof;  which  day,  together  with  the  proprietor's 
name,  is  to  be  trul}^  engraved  on  each  plate,  and  printed  on  every 
print.(m)^  But  these  acts  do  not  apply  to  illustrative  wood  en- 
gravings printed  on  the  same  sheets  as  the  letter-press  of  a  book, 
as  such  engravings  form  part  of  the  book  and  are  comprised 
within  its  copyright. (?2)  Under  these  acts  the  assignee  of  the 
copyright  may  bring  an  action  in  his  own  name  against  any  per- 
son who  may  pirate  it.(o)  And  by  a  modern  statute(p)  all  the 
provisions  contained  in  these  acts  are  extended  to  the  United 
Kingdom  of  Great  Britain  and  Ireland.  And  it  is  provided(5') 
that,  if  any  person  shall,  during  the  existence  of  the  copyright, 
engrave,  etch  or  publish  any  engraving  or  print  of  any  descrip- 
tion whatever,  either  in  whole  or  in  part,  already  published  in 
any  part  of  Great  Britain  or  Ireland,  without  the  express  consent 
r*OQm  *^f  ^^^  proprietor  or  ^proprietors  thereof  first  obtained  in 
'-  *"  -^  writing,  signed  by  him,  her  or  them  respectively,  with  his, 
her  or  their  own  hand  or  hands,  in  the  presence  of  and  attested 

(/)  Several  British  colonies  have  obtained  orders  in  council,  under  this  act.  See  6  Jur. 
N.  S.  pt.  2,  p.  45. 

(m)  8  Geo.  II,  c.  1.3,  amended  by  7  Geo.  Ill,  c  38,  and  rendered  more  effectual  by  17 
Geo.  Ill,  c.  57.     Gambart  v.  Sumner,  5  H.  &  N.  5. 

(«)   Bogue  V.  Houlston,  5  De  Gex  &  Smale,  267  ;  S.  C.  16  Jur.  272. 

(o)   Thompson  v.  Symonds,  5  T.  Rep.  41.  {q)  Sect.  2. 

(p)  Stat.  6  &  7  Will.  IV,  c.  59,  s.  1. 

1  See  ante,  p.  224,  note. 


OF   PATENTS   AND   COPYRIGHTS.  325 

by  two  or  more  credible  witnesses,  tben  every  such  proprietor 
may,  by  a  separate  action  upon  the  case,  to  be  brought  against 
the  person  so  offending,  in  any  court  of  law  in  Great  Britain  or 
Ireland,  recover  such  damages  as  the  jury  shall  assess,  together 
with  double  costs  of  suit.  By  a  more  recent  act  it  is  declared 
that  the  provisions  of  the  above-mentioned  statutes  are  intended 
to  include  prints  taken  by  lithography,  or  any  other  mechanical 
process  by  which  prints  or  impressions  of  drawings  or  designs  are 
capable  of  being  multiplied  indefinitely.(r) 

By  other  acts  of  Parliament  copyright  has  been  granted  to  the 
makers  of  new  and  original  sculptures,  models,  copies,  and  casts, 
for  the  term  of  fourteen  years  from  their  first  putting  forth  or 
publishing  the  same, (5)  with  a  further  term  of  fourteen  years  to 
the  original  maker,  if  he  shall  be  then  living  ;(^)  provided  that 
in  every  case  the  proprietor  cause  his  name,  with  date,  to  be  put 
on  every  such  sculpture,  model,  copy,  or  cast,  before  the  same 
shall  be  put  forth  or  published.(z<)^     And  it  is  also  provided,  that 

(r)  Stat.  15  &  16  Vict.  e.  12,  s.  14. 

(s)  38  Geo.  Ill,  c.  71,  amended  by  54  Geo.  Ill,  c.  56. 

(0  54  Geo.  Ill,  c.  56,  s.  6.  (m)   Sect.  1. 


1  The  act  of  Congress  of  August  29,  1842        And  by  the  eleventh  section   of  the  act  of 

(5  Statutes  at  Large,  543),  authorizes  a  pat-  tlie  2d  of  March,  1861  (12  Stats,  at  Large, 

ent  to  be  granted  to   a  citizen,  or    an  alien  246),  a  patent  may  be  granted  for  the  term  of 

who   has    resided    one    year    in    the    United  three  and  a  half  years,  or  for  seven,  or  for 

States,  and  taken  an  oath  of  his  intention  to  fourteen  years,  as  the  applicant  may  choose, 

become  a  citizen,  for   the  invention   or  pro-  to  "any  citizen  or  citizens,  or  alien  or  aliens, 

duction  of  "  any  new  and  original  design  for  having  resided  one  year  in  the  United  States, 

a  manufacture,  whether  of  metal  or  of  other  and  taken  the  oath  of  his  or  their  intention 

material  or  materials,  or  any  new  and  origi-  to  becomes  citizen  or  citizens,  who,  by  his, 

nal  design  for  the  printing  of  woollen,  silk,  her,  or  their  own  industry,  genius,  efforts  and 

cotton,    or    other   fabrics,    or    any    new   and  expense,  may  have  invented  or  produced,  any 

original   design  for  a  bust,  gtatue,  or   bas-  new  and   original  design,  or  a  manufacture, 

relief,    or   composition    in  alto  or    basso  re-  whether  of  metal,  or  other  material  or  ma- 

lievo,  and  any  new  or  original  impression  or  teriale,  and  original  design  for  a  bust,  statue, 

ornament,  or  to  be  placed  on  any  article  of  or  bas-relief,  or  composition  in  alto  or  basso 

manufacture,  the  same  being  formed  in  mar-  relievo,  or  any  new  and  original  impression 

ble  or  other  material,  or  any  new  and  useful  or  ornament,  or  to  be  placed  on  any  article 

pattern,   or   print,    or  picture,    to  be  either  of.  manufacture,    or   any    new    and    original 

worked   into,   or   worked  on,    or  printed,  or  shape  or  configuration  of  any  article  of  luan- 

painted,  or  cast,  or  otherwise  fixed  on,  any  ufacture,  not  known  or  used  by  others  before 

article  of  manufacture,  or  any  new  and  origi-  his,    her,   or   their  invention    or   production 

nal  shape  or  conQguration,  of  any  article  of  thereof." 
manufacture,  not  known  or  used  by  others." 


326        OF  INCORPOREAL  PERSONAL  PROPERTY. 

no  person  who  shall  purchase  the  right  or  property  of  any  such 
sculpture,  model,  copy,  or  cast,  of  the  proprietor,  expressed  in  a 
deed  in  writing  signed  hy  him  with  his  own  hand,  in  the  presence 
of  and  attested  by  two  or  more  credible  witnesses,  shall  be  sub- 
ject to  any  action  for  copying,  casting,  or  vending  the  same.(x) 
By  the  Designs  Act,  1850,(^)  provision  has  been  made  for  the 
registration  of  sculptures,  models,  copies,  and  casts,  within  the 
protection  of  the  Sculpture  *Copyright  Acts,  which  regis- 
^  -'  tration  entitles  the  proprietor  of  the  copyright  to  certain 
penalties  in  ease  of  piracy.(z)  And  with  regard  to  paintings, 
drawings,  and  photographs,  it  is  now  provided  that  the  exclusive 
right  of  copying,  engraving,  reproducing,  and  multiplying  them, 
by  any  means  and  of  any  size,  shall  belong  to  the  author,  being 
a  British  subject  or  resident  within  the  dominions  of  the  Crown, 
for  the  term  of  his  life  and  seven  years  after  his  death. («)  And  a 
register  of  proprietors  of  copyright  in  paintings,  drawings  and 
lithographs  is  established  at  Stationers'  Hall,  subject  to  similar 
regulations  to  that  established  for  the  registry  of  copyright  in 
books.(6) 

By  an  act  of  Parliament  recently  passed  to  amend  the  law  of 
international  copyriglit,(c)  her  majesty  is  empowered  by  any 
order  in  council  to  grant  the  privilege  of  copyright  for  such 
period  as  shall  be  defined  in  such  order  (not  exceeding  the  term 
allowed  in  this  country),  to  the  authors,  inventors  and  makers 
of  books,  prints,  articles  of  sculpture  and  other  works  of  art,  or 
any  particular  class  of  them,  to  be  defined  in  such  order,  which 
shall,  after  a  future  time  to  be  specified  in  such  order,  be  first 
published  in  any  foreign  country,  to  be  named  in  such  order.^ 

{x)  Sect.  4.  («)   Stat.  25  &  26  Vict.  c.  68,  s.  1. 

(y)   Stat.  13  &  14  Vict.  c.  104,  s.  6.  (/>)   Sects.  4,  5,  a)ite,  p.  227. 

(2)  Stat.  13  &  14  Vict.  c.  104,  s.  7. 

(c)  Stat.  7  &  8  Vict.  c.  12,  ss.  2,  3,  4,  extended  to  paintings,  drawings,  and  photographs, 
by  Stat.  25  &  26  Vict.  c.  68,  s.  12. 


1  An    international    copyright    has  never  printing,  or   publishing,  of  any  map,  chart, 

been  a  part  of  our  system  ;  on  the  contrary,  book,  musical  composition,  print  or  engrav- 

it  is  declared  by  the  eighth  section  of  the  act  ing,  written,  composed,  or  made,  by  any  per- 

of  Congress  of  Feb.    3,  1841,   that    nothing  son  not  being  a  citizen  of  the  United  States, 

in  that  act   shall    "be  construed,  to  extend  nor  reside'ht  within  the  jurisdiction  thereof." 
to   prohibiting  the  importation,  or  vending. 


OF   PATENTS   AND   COPYRIGHTS.  327 

And  her  majesty  is  also  empowered(<i)  by  any  order  in  .council  to 
direct  that  the  authors  of  dramatic  pieces  and  musical  composi- 
tions, which  shall,  after  a  future  time,  to  be  specified  in  such 
order,  be  first  publicly  represented  or  performed  in  any  foreign 
country,  to  be  named  in  such  order,  shall  have  the  sole  liberty 
of  representing  or  performing  in  any  part  of  the  British  domin- 
ions such  dramatic  pieces  or  musical  compositions  *during  p^gooT 
such  period  as  shall  be  defined  in  such  order,  not  exceed-  L  "^  J 
ing  the  period  allowed  in  this  country.  Provision,  however,  is 
made  for  the  entry  of  proper  particulars  of  the  subjects,  for 
which  copyrights  shall  be  granted  in  the  register  book  of  the 
Stationers'  Company  in  London,  within  a  time  to  be  prescribed 
in  each  such  order  in  council. (e)  And  all  copies  of  books  where- 
in there  shall  be  any  subsisting  copyright  by  virtue  of  this  act, 
or  of  any  order  in  council  made  in  pursuance  thereof,  printed 
or  reprinted  in  any  foreign  country,  except  that  in  which  such 
books  were  first  published,  are  absolutely  prohibited  to  be  im- 
ported into  any  part  of  the  British  dominions,  except  with  the 
consent  of  the  registered  proprietor  of  the  copyright  thereof, 
or  his  agent  authorized  in  writing. (/)  But  no  such  order  in 
council  shall  have  any  effect  unless  it  shall  be  therein  stated,  as 
the  ground  for  issuing  the  same,  that  due  protection  has  been 
secured  by  the  foreign  power  named  in  such  order  in  council  for 
the  benefit  of  parties  interested  in  works  first  published  in  the 
dominions  of  her  majesty,  similar  to  those  comprised  in  such 
order.(^)  And  every  such  order  in  council  is  to  be  published  in 
the  London  Gazette  as  soon  as  may  be  after  the  making  thereof, 
and  from  the  time  of  such  publication  shall  have  the  same  eflfect 
as  if  every  part  thereof  were  included  in  the  act{h)  And  no 
copyright  is  allowed  to  any  book,  dramatic  piece,  musical  com- 
position, print,  article  of  sculpture,  or  other  w^ork  of  art,  first 
published  out  of  her  majesty's  dominions,  otherwise  than  under 
this  act.  A  convention  under  this  act  has  already  been  effected 
with  France,  the  stipulations  of  which  have  been  confirmed  by 
act  of  Parliament.(f)  And  the  provisions  of  the  International 
Copyright  Act  have  been  extended  to  authorized  translations  of 

(d)  Sect.  5. 

(«)   Stat.  7  A  8  Vict.  c.  12,  ss.  6,  7,  8,  9  ;  Ciissell  v.  Stiff,  2  Kay  A  J.  279. 

(/)  Sect.  10.  (//.)   Sect.  15. 

(§■)   Sect.  14.  ,  (t)  Stat.  15  &  IG  Vict.  c.  12. 


328  OF   INCORPOREAL    PERSONAL   PROPERTY. 

foreign  books  for  a  term  not  exceeding  five  years  from  the  first 
r*o«3QT  *pi^ibli cation  of  such  translations ;(A:)  also  to  authorized 
'-*'-'  translations  of  foreign  dramatic  pieces  for  a  term  not  ex- 
ceeding five  years  from  the  time  at  which  the  authorized  trans- 
lations are  first  published  or  publicly  represented, (^)  but  so  as 
not  to  prevent  fair  imitations  or  adaptations  to  the  English  stage 
of  any  dramatic  piece  or  musical  composition  published  in  any 
foreign  country. (»0 

ITo  person  can  print  or  publish  any  newspaper  before  deliver- 
ing at  the  Stamp  Ofliee  a  declaration  containing,  amongst  other 
things,  the  true  name,  addition  and  place  of  abode  of  the  printer 
and  publisher,  and  of  every  proprietor  resident  out  of  the  United 
Kingdom,  and  also  of  every  proprietor  resident  in  the  United 
Kingdom,  if  their  number  shall  not  exceed  two,  exclusive  of  the 
printer  and  publisher;  and  if  their  number  should  exceed  two, 
then  the  names  of  two  of  the  proprietors  must  be  given,  the 
amount  of  whose  shares  shall  not  be  less  than  the  share  of  any 
other  proprietor  resident  in  the  United  Kingdom,  exclusive  of  the 
printer  and  publisher ;  and  the  amount  of  their  shares  must  be 
specified. (?i)  Under  this  act  if  one  person  holds  in  trust  for  an- 
other, both  names  must  be  mentioned  ;(o)  and  a  mortgagee  must 
be  mentioned  also,  otherwise  the  right  to  publish  the  newspaper 
will  be  considered  as  goods  of  the  mortgagee  in  the  order  and 
disposition  of  the  mortgagor,  and  will  accordingly,  in  the  event 
of  his  bankruptcy,  pass  to  his  assignees.(^) 

By  recent  statutes  a  copyright  has  been  granted  to  designs  for 
^.  ^^  .-,  articles  of  manufacture  for  the  term  of  three  *years,  one 
'-'"-'  year,  or  nine  calendar  months,  according  to  the  nature  of 
the  manufacture ;('/)'  and,  in  pursuance  of  these  acts,  a  registrar 
of  designs   for  articles  of  manufacture  has   been  appointed,  by 

(/t)   Stat.  15  &  16  Vict.  c.  12,  ss.  1,  2,  3,  4. 

{I)  Sects.  4,  5.  («)   Stat.  6  &  7  Will.  IV,  c.  76,  .s.  6. 

(m)  Sect.  6.  (o)   Harmer  v.  Westmacott,  6  Sim.  284. 

{p)  Longman  v.  Tripp,  2  Bos.  &  Pull.  N.  Rep.  67;  Ex  parte  Foss,  Re  Baldwyn,  2  De 
Gex  &  Jones,  2.30. 

(q)  Stat.  5  &  6  Vict.  c.  100,  by  which  all  the  previous  statutes  were  consolidated,  and  6 
&  7  Vict.  c.  65  ;  21  &  22  Vict.  c.  70  ;  24  &  25  Vict.  c.  73. 

1  See  ante,  p.  230,  note. 


OF    PATENTS   AND   COPYRIGHTS.  329 

whom  all  designs  to  be  protected  by  the  acts  are  required  to  be 
registered  ;(r)  and  provision  is  also  made  for  the  transfer  of  the 
copyright  in  such  designs  by  any  writing  purporting  to  be  a  trans- 
fer, and  signed  by  the  proprietor,  and  also  for  the  registration  of 
transfers  in  a  prescribed  form.(s)  These  acts  have  been  extended 
and  amended  by  the  Designs  Act,  1850,(^)  which  provides  for  the 
"provisional  registration"  of  designs  for  the  term  of  one  year, 
and  empowers  the  Board  of  Trade  to  extend  the  copyright  in 
ornamental  designs  for  such  term,  not  exceeding  the  additional 
term  of  three  years,  as  the  board  may  think  fit.(^()  A  more 
recent  statute  extends  the  copyright  in  certain  ornamental  de- 
signs,(:c)  and  provides  for  the  registration  of  any  pattern  or  por- 
tion of  any  article  of  manufacture  instead  of  a  drawing  or 
description. (_y)  It  also  enables  proceedings  for  piracy  to  be 
brought  in  the  county  court. (2:) 

The  marks  often  used  by  manufacturers  to  designate  goods 
made  by  them  are  not  strictly  speaking  property ;(a)  but  the 
Court  of  Chancery  will  restrain  a  third  person  from  passing  off 
his  own  goods  as  those  made  by  another,  by  the  use  of  that  other 
person's  trade-mark.  And  when  a  business,  with  the  machinery 
*and  trade-marks,  is  assigned  from  one  person  to  another,  r-^n^r-, 
the  assignee  has  the  same  right  as  the  assignor  had  before  '-  -^ 
to  prevent  others  from  using  the  marks.(6)  A  trade-mark  may 
belong  to  particular  works  as  well  as  to  particular  persons. (<:•) 
But  those  who  themselves  deceive  the  public  cannot  prevent 
others  from  using  their  marks.(fl()  A  recent  act  of  Parliament 
has  amended  the  law  relating  to  the  fraudulent  marking  of 
merchandise,(e)  and  has  made  the  forging  of  trade-marks  or 
their  Avrongful  application  to  articles  of  merchandise  a  misde- 

(r)  6  A.  7  Vict.  c.  65,  ss.  7,  8,  9. 
(»)  5  &  6  Vict.  c.  100,  g.  6  ;  t)  &  7  Vict.  c.  65,  s.  0. 

(0   Stnt.  13  &  14  Vict.   c.  104.     See,  also,  stats.  14  &  15  Vict.  c.   8,  extended  by  stat.  15 
&  10  Vict.  e.  6. 

(«)   Stat.  13  &  14  Vict.  c.  104,  s.  9.  (a)   Collins  Co.  v.  Brown,  3  Kay  &  J.  423. 

{x)  Stat.  21  &  22  Vict.  c.  70,  s.  3.  (A)   Edelston  v.  Vick,  11  Hare,  78. 

{y)   iSect.  5.  (r)   Motley  v.  Downiuan,  3  My.  &  Cr.  1. 

(z)   Sect.s.  8,  9. 

{d}   Pidding  v.  IIow,  8  8im.  477  ;   Perry  v.  Truefitt,  0  lieav.  66. 

(e)  Stat.  25  &  26  Vict.  c.  88. 


330        OF  INCORPOREAL  PERSONAL  PROPERTY. 

meanor.(/y  And  every  person  wlio  now  contracts  to  sell  any 
article  with  iiny  trade-mark  thereon  is  deemed  to  warrant  that 
such  mark  is  genuine,  unless  the  contrary  be  expressed  in  some 
writing  signed  by  or  on  behalf  of  tlie  vendor,  and  delivered  to 
and  accepted  by  the  purchaser.(//)  And  the  same  provision  has 
been  made  with  respect  to  any  description,  statement,  or  other 
indication  of  or  respecting  the  number,  quantity,  measure,  or 
weight  of  any  article,  or  the  place  or  country  in  which  it  shall 
have  been  made  or  produced.(A)^ 

(/)  Sects.  2,  3.  {g)   Sect.  19.  {h)   Sect.  20. 


1  Equity  will  enjoin  agninst  the  pirating  ment  of  thai  right  ;  Webb  et  al.v.  Powers  et 
of  a  trade-mark,  where  there  is  between  the  a!.,  2  Wood.  &  Min.  R.  497;  but  an  abridg- 
original  and  the  imitation  raarlss,  such  re-  ment,  being  not  a  mere  compilation  of  the 
semblance  as  would  mislead  purchasers  using  work  of  another,  but  a  substantial  condensa- 
ordinary  prudence  and  caution  ;  Colladay  v.  tion  of  the  materials  of  the  original  work,  re- 
Baird,  Common  Pleas  of  Phil'a,  17  Leg.  quiring  intellectual  ability,  and  judgment,  and 
Intell.  365  ;  but  chancery  will  not  interfere  labor,  is  not  an  infringement  of  a  copyright, 
in  such  questions,  between  the  vendors  of  but  is  itself  a  subject  of  copyright,  notwith- 
patent  medicines,  being  quack  medicines,  standing  a  copyright  has  been  obtained  by 
the  questions  in  these  cases  having  too  little  the  author  of  the  previous  work,  of  which  it 
merit  to  commend  them  on  either  side;  is  an  abridgment;  Folsom  et  al. -y.  Marsh  et 
Heath  y.  Wright,  3  Wallace,  Jr.  R.  al.,  2  Story's  R.  100  ;   Story's  Exrs.  v.   Hol- 

2  There  can  be  no  copyright  of  an  abstract  combe  et  al.,  4  McLean's  R.  306. 

idea;  a  thing  invented,  but  not  visible  to  By  the  common  law,  an  author  has  a  prop- 
others  ;  the  invention  must,  in  addition,  have  erty  in  his  manuscript,  so  long  as  he  does 
been  designed  or  represented  in  some  visible  not  abandon  it  to  the  public  ;  Bartlette  v. 
form;  Binns  v.  Woodruff,  4  Wash.  C.  C  R.  Crittenden  et  al  ,  4  McLean's  R.  300  ;  Whea- 
48;  and  it  must  be  of  something  new  and  ton  et  al.  v.  Peters  et  al.,  8  Pet.  R.  591  ; 
original,  and  not  merely  a  copy  from  some-  Banker  v.  Caldwell,  3  Min.  R.  94  ;  and  if  he 
thing  already  produced,  with  only  such  alter-  publishes  his  work,  he  dedicates  it  to  the 
ations,  as  a  person  of  skill  and  experience  public  ;  Bartlette  v.  Crittenden,  5  McLean's 
could  readily  make  ;  Jollin  v.  Jacques  et  al.,  R.  32  ;  but  the  sending  of  a  letter  by  post,  is 
1  Blatchf.  R.  018  ;  Webb  et  al.  v.  Powers  et  not  considered  as  an  abandonment  of  it,  and 
al.,  2  Wood.  &  Min.  R.  497  ;  but  it  matters  the  sole  right  of  publishing  still  remains  in 
not  whether  the  materials  of  the  compilation  the  author;  Denis  v.  Leclere,  1  Mart.  La.  R. 
be  new  or  old  ;  Emerson  v.  Diivies  et  al.,  3  297;  Folsom  et  al.  v.  Marsh  et  al.,  2  Story's 
Story's  R.  768;  for  every  one  may  have  the  R.  100;  Wetmore  v.  Scovell  et  al.,  3  Edw. 
right  to  use  the  materials,  and  yet  the  com-  Ch.  R.  515;  and  in  accordance  with  the 
pilation  be  the  subject  of  copyright  ;  Gray  et  same  principle  it  has  been  held,  that  where 
al.  V.  Russel  et  al.,  1  Story's  R.  11  ;  Atwill  a  manuscript  had  been  u.sed  for  the  purposes 
V.  Ferrett,  2  Blatch  C.  C.  R.  39.  But  a  dis-  of  instruction,  the  author  had  not  thereby 
tinction  is  to  be  noticed  between  a  compila-  abandoned  it,  even  though  the  pupils  had 
tion  and  an  abridgment,  for  if  a  compilation  taken  copies  of  it ;  Bartlette  v.  Crittenden  et 
be  made  of  materials  which  are  not  open  to  al  ,  4  McL.  R.  300. 

all,  but  of  the  work  of  another,  for  which  a  The  case  of  Stephens  v.  Cady,  14  How.  R. 

copyright  has  been  obtained,  it  is  an  infringe-  529,  decides  that  a  copyright  is  not  the  sub- 


OF    PATENTS    AND   COPYRIGHTS. 


001 
ooi 


ject  of  an  execution  at  common  law.  A  cop- 
per-plate engraving  was  taken  in  execution, 
and  Justice  Nelson,  in  his  opinion,  remarks, 
"  The  copper-plate  engraving,  like  any  other 
tangible  personal  property,  is  the  subject  of 
seizure  and  sale,  on  execution.  And  the  title 
passes  to  the  purchaser,  the  same  as  if  made 
at  a  private  sale.  But  the  incorporeal  right, 
secured  by  the  statute  to  the  author,  to  mul- 
tiply copies  of  his  map,  by  the  use  of  the 
plate,  being  intangible,  and  resting  alto- 
gether in  grant,  is  not  the  subject  of  seizure 
and  sale  by  means  of  this  process — certainly 
not  at  common  law.  No  doubt  the  property 
may  be  reached  by  a  creditor's  bill,  and  be 
appliefl  to  the  payment  of  the  debts  of  the 
author,  the  same  as  stock  of  the  debtor  is 
reached  and  applied,  the  court  compelling  a 


transfer  and  sale  of  the  stock  for  the  benefit 
of  the  creditors.'" 

And  see  also  Stevens  v.  Gladding,  17  IIow. 
R.  44  7. 

Oa  the  subject  of  infringement  of  copy- 
right, see  Backus  v.  Gould  et  al.,  7  How.  R. 
798  ;  Story's  Exrs.  v.  Holeombe  et  al.,  4  Mc- 
Lean's R.  306  ;  Jollin  v.  Jacques  et  al.,  1 
Blatchf.  R.  618  ;  Webb  etal.  v.  Powers  et  al  , 
2  Wood  k  Min.  R.  497  ;  Blunt  v.  Patten,  2 
Paine's  C.  C.  R.  393 ;  Little  v.  Gould,  2 
Blatch.  C.  C.  R.  165,  362;  Stowe  v.  Thomas, 
2  Wallace,  Jr.  R.  547  ;  in  this  last  case, 
which  is  one  of  the  more  recent  on  the  sub- 
ject of  copyright,  it  was  decided  that  the 
translation  into  another  language,  of  a  book 
for  which  a  copyright  was  granted,  was  not 
an  Infringement  of  that  right. 


[*236]  *PART    IV. 

OF  PERSONAL  ESTATE  GENERALLY. 


CHAPTER    L 

OF   SETTLEMENTS    OF    PERSONAL    PROPERTY. 

Personal  property  is  capable  of  being  settled,  but  not  in  the 
same  manner  as  laud.  Laud,  being  held  by  estates,  is  settled  by 
means  of  life  estates  being  given  to  some  persons,  with  estates  in 
remainder  in  tail  and  in  fee  simple  to  others.  But  personal  prop- 
erty, as  we  have  already  observed, (a)  is  essentially  the  subject 
of  absolute  ownership.  The  settlement  of  such  property,  by  the 
creation  of  estates  in  it,  cannot  therefore  be  accomplished.  And 
there  is  a  striking  difference  in  many  cases  between  the  effect  of 
the  same  limitation,  according  as  it  may  be  applied  to  real  or  to 
personal  property. 

As  there  can  be  no  estate  in  personal  property,  it  follows  that 
there  can  be  no  such  thing  as  an  estate  for  life  in  such  property 
in  the  strict  meaning  of  the  phrase.  Thus  if  any  chattel,  whether 
real  or  personal,  be  assigned  to  A.  for  his  life,  A.  will  at  once  be- 
come entitled  in  law  to  the  whole.  By  the  assignment  the  prop- 
erty in  the  chattel  passes  to  him,  and  the  law  knows  nothing  of  a 
reversion  in  such  chattel  remaining  in  the  assignor.  And  this 
is  the  case  even  though  the  chattel  be  a  term  of  years  of  such 
length  (for  instance  1000  years)  that  A.  could  not  possibly  live  so 

(a)  Ante,  p.  7. 


OF    SETTLEMENTS    OF    PERSONAL    PROPERTY. 


333 


loug.(6j^     The  term  is  *considered  in  law  as  an  indivisible  ^n.^vn 
chattel,  and  consequently  incapable  of  any  such  modifica- 
tion of  ownership  as  is  contained  in  a  life  estate. 

An  apparent  exception  to  the  above  rule  has  long  been  estab- 
lished in  the  case  of  a  bequest  by  will  of  a  term  of  years  to  a 


(i)  2  Prest.  Abs.  5. 


1  A  term  of  years,  whether  for  one  year,  or 
for  one  thousand,  is  personal  property  :  Peti- 
tion of  Timothy  Gray,  5  Mass.  R.  419  ;  Brews- 
ter V.  Hill,  1  N.  H.  R.  350  ;  Dillingham  v. 
Jenkins,  7  Smed.  &  Mars.  R.  487  ;  The  Widow 
and  Heirs  of  Reynolds  v.  The  Commissioners 
of  Stark  Co.,  5  0.  R.  204;  Field  v.  Howell,  6 
Geo.  R.  423;  AVilliams's  Exrs.  v.  The  Mayor, 
Ac,  of  Annapolis,  6  Har.  &  Johns.  R.  529; 
although  the  legislatures  of  some  of  the 
States  have  enacted,  that  under  certain  cir- 
cumstances, they  shall  be  considered  real 
property,  and  in  other  States,  they  have  been 
made  subject  to  the  rules  and  regulations, 
prescribed  with  respect  to  real  estate  ;  thus, 
by  the  Revised  Statutes  of  Mass.,  I860,  Ch. 
90,  §  20,  p.  471,  "  When  land  is  demised  for 
the  term  of  one  hundred  years  or  more,  the 
term  shall,  so  long  as  fifty  years  of  the  same 
remain  unexpired,  be  regarded  as  an  estate 
in  fee  simple,  as  to  everything  concerning  the 
descent  and  devise  thereof,  upon  the  decease 
of  the  owner,  the  right  of  dower  therein,  and 
the  sale  thereof  by  executors,  administrators, 
or  guardians,  by  license  from  any  court:  and 
also  concerning  the  levy  of  executions  there- 
on, and  the  redemption  thereof,  when  ta- 
ken in  execution  or  when  mortgaged;"  and 
by  3d  Vol.  Revis.  Stats,  of  N.  Y.  (5th  ed.), 
p.  12,  §  24,  "A  freehold  estate,  as  well  as  a 
chattel  real,  may  be  created  to  commence  at 
a  future  day  ;  an  estate  for  life  may  be  cre'- 
ated  in  a  term  of  years,  and  a  remainder  lim- 
ited thereon  :  a  remainder  of  a  freehold  or 
chattel  real,  either  contingent  or  vested,  may 
be  created  expectant  on  the  determination  of 
a  term  of  years."  In  Ohio,  "  Permanent 
leasehold  estates,  renewable  forever,  shall  be 
subject  to  the  same  law  of  descent  and  distri- 
bution, as  estates  in  fee  are  or  may  be  subject 
to;"  Ohio  Revis.  Stats.  (I860),  Ch.  36,  §  20, 


p.  505,  and  Ch.  87,  §  1,  p.  1142.  The  laws  of 
Pennsylvania,  enjoin  the  recording  of  leases 
for  a  longer  term  than  twenty-one  years,  as 
deeds  of  land  are  recorded  ;  Purd.  Dig.,  by 
Brightly,  (1861),  p.  321,  §§  2  and  3.  The 
Compiled  Stats,  of  N.  H.  (185.3),  p.  289^con- 
tain  a  similar  provision  with  respect  to  leases 
of  a  longer  duration  than  seven  years  ;  and 
the  Stats,  of  Vt.  (1839),  p.  312,  §  6,  fix  the 
term  of  years  which  must  be  acknowledged 
by  the  grantor,  and  recorded,  at  any  period 
greater  than  one  year.     See  ante,  p.  2,  note  1. 

Notwithstanding  the  statute  of  Ohio  mak- 
ing permanent  leaseholds  subject  to  all  the 
laws  and  rules  applicable  to  land,  with  re- 
gard to  descent  and  distribuBion,  it  is  still  to 
be  doubted  whether  they  are  to  be  regarded 
as  realty  in  that  State  ;  the  early  case  of  The 
Lessee  of  Bisbee  v.  Hall,  3  0.  R.  465,  which 
occurred  before  the  enactment  of  the  statute 
above  referred  to,  decided  that  leases  were 
subject  to  the  laws  of  personal  property  ;  the 
subsequent  case  of  Murdock  et  al.  v.  Rat- 
elifie,  7  0.  R.  123,  in  interpreting  a  statute 
then  in  force,  which  declared  that  the  ten- 
ants or  lessees,  should  enjoy  ail  the  rights  and 
privileges  which  they  would  be  entitled  to 
enjoy,  did  they  hold  their  lands  in  fee  simple, 
says,  this  provision  was  "designed,  in  our 
opinion,  to  secure  to  tenants,  civil  and  politi- 
cal privileges,  not  to  change  th«  quality  of 
their  estates." 

It  having  been  enacted,  that  permanent 
leasehold  estates,  should  be  subject  to  the 
laws  of  real  estate,  as  to  descent  and  distri- 
bution, it  was  ruled  in  Loring  v.  McUIendy 
et  al.,  11  0.  R.  335,  that  a  permanent  lease- 
hold estate  is  not  a  chattel,  but  realty  ;  which 
is  shaken,  if  not  overruled,  in  The  Lessee  of 
Boyd  et  al.  v.  Talbert,  12  0.  R.  213,  where 
Chief  Justice  Lane  remarks:   "The  que.-tion 


334 


OF    PERSONAL    ESTATE   GENERALLY. 


person  for  liis  life :  in  this  case  the  intention  of  the  testator  is 
carried  into  effect  by  the  application  of  a  doctrine  similar  to 


whether  a  lease  be  a  realty  or  personalty, 
need  not  be  here  determined  ;  but  I  take  the 
opportunity  to  express  my  apprehension,  that 
the  case  reported  last  year"  (Loring  v. 
McClendy  et  al.,  11  0.  R.  355)  "does  not 
conclude  this  point,  and  I  shall  be  ready  to 
consider  it  when  it  becomes  necessary."'  This 
is  followed  by  The  Northern  Bank  of  Ken- 
tucky V.  Roosa,  13  0.  R.  334,  explaining 
Loring  v.  McClendy,  and  deciding  that  judg- 
ments are  liens,  without  levy,  for  one  year,  on 
permanent  leaseholds  as  upon  other  real  es- 
tate. 

And  this  doubt  is  perhaps  increased,  by  the 
opinion  of  Spalding,  J.,- in  the  case  of  Buck- 
ingham V.  Reeve  et  al.,  19  0.  R.  399,  wherein 
be  say.s,  that  if  he  was  called  upon  to  decide 
the  question  directly,  he  should  hesitate  to 
say  that  a  judgment  at  law  would  have  a  lien 
upon  any  leasehold  estate  whatever;  and  adds 
further,  that  the  law  then  in  force  in  Ohio 
regulating  permanent  leaseholds,  had  "re- 
spect only  to  the  treatment,  after  an  order  of 
sale,  or  the  levy  of  an  execution."'  But  in 
Phillips  et  al.  v.  Knox  County  Mutual  Insur- 
ance Company,  20  Id.  181,  it  was  said,  that 
where  a  lease  had  been  made  for  ninety-nine 
years,  it  was  equivalent  to  the  fee.  And  see 
also  McAlpin  v.  WoodrufiF,  11  0.  St.  R.  120. 

Strictly  spenking,  there  cannot  be  a  limita- 
tion of  personal  property  after  an  estate  for 
life  in  it ;  nevertheless,  this  may  be  attained 
by  means  of  an  executory  devise,  or  deed  of 
trust ;  Cooper  v.  Cooper,  2  Brevard's  R.  355  ; 
and  the  only  question  to  be  determined,  in  or- 
der to  decide  upon  the  validity  of  the  limita- 
tion, is,  whether  it  tends  to  create  a  perpetu- 
ity :  that  is,  whether  it  is  impossible  for  it  to 
take  effect,  and  be  executed,  within  a  life  or 
lives  in  being,  and  twenty-one  years  added  to 
the  period  of  gestation,  afterwards  ;  if  it  will, 
it  is  a  valid  limitation ;  Griggs  v.  Dodge,  2 
Day's  R.  28  ;  Taber  v.  Packwood,  Id.  52  ; 
Nevison  et  al.  v.  Taylor,  Admr.,  3  Halst.  R. 
43  :  Home  et  al.  v.  Lyeth,  4  Har.  &  Johns. 
R.  431 ;  Keating  v.  Reynolds,  Bay's  R.  80  ; 
Cordle's  Admr.  v.  Cordle's  Exr.,  6  Munf.  R. 
455  ;  Timberlake  v.  Graves,  Id.  174  ;  Drury 


et  al.  V.  Grace,  2  Har.  &  Johns.  R.  356; 
Jackson  v.  Blanshaw,  3  Johns.  R.  292 ;  Pat- 
erson  v.  Ellis's  Exrs.,  11  Wend.  R.  259; 
Scott,  Exr.,  V.  Price,  Exr.,  2  Serg.  &  Raw.  R. 
59;  Mifflin  v.  Neal,  Admr.,  6  Id.  460;  Cns- 
silly  et  al.  v.  Meyer  et  al.,  4  Md.  R.  1  ;  Hub- 
ley  V.  Long,  2  Grant's  Cas.  268  :  Ingram  v. 
Smith,  1  Head's  (Tenn.)  R.  411  ;  Thornton 
V.  Burch,  20  Ga.  R.  791. 

In  Home  et  al.  v.  Lyeth,  4  Har.  &  Johns. 
R.  431,  Chief  Justice  Dorsey  uses  the  follow- 
ing words:  "Having  thus  briefly  examined 
what  would  have  been  the  operation  of  this 
bequest,  if  the  subject-matter  had  been  a 
frank-tenant  (and  in  doing  this,  we  were  ne- 
cessarily led  upon  an  inquiry  concerning  the 
meaning  and  legal  effect,  of  the  word  'heirs' 
and  'heirs  of  the  body,'  when  limited  upon  a 
preceding  estate  of  freehold),  we  shall  now 
consider  the  bequest  as  applicable  to  chattel 
interest,  or  leasehold  property. 

"At  one  period  of  our  law,  if  a  term  for 
years  or  chattel  was  bequeathed  to  one  for  life, 
and  after  his  death  to  a  third  person,  the  ul- 
terior limitation  was  considered  void,  and  the 
whole  interest  of  the  term  or  thing,  became 
vested  in  the  first  devisee  ;  but  in  process  of 
time,  this  doctrine  was  abandoned,  and  courts 
of  justice,  on  grounds  of  general  utility  and 
public  convenience,  sustained  the  superadded 

limitation  as  an  executory  devise If 

a  leasehold  estate  is  limited  to  one  for  life, 
remainder  to  the  'heirs  of  his  body,'  the 
whole  interest  vests  in  the  first  taker,  and  the 
words  'for  life,'  will  not  be  sufficient  to  re- 
strain his  interest  to  a  life  estate.  But  if 
words  of  limitation  are  superadded  to  the 
words  'heirs  of  the  body,'  such  additional 
limitation  is  considered  as  indicative  of  an 

intention,  to  give  only  a  life  estate 

If  the  words  'heirs  of  the  body'  (which  nat- 
urally point  to  children  and  their  descend- 
ants), are  considered  as  words  of  limitation, 
and  enlarge  the  estate  of  the  first  devisee  to 
an  absolute  interest,  why  should  not  the  word 
'heirs,'  so  comprehensive  in  its  signification, 
give  as  great  an  interest?  " 

In  accordance   with   the   doctrine,   that  if 


OF    SETTLEMENTS   OF    PERSONAL    PROPERTY.  335 

that  of  executory  clevises  of  real  estates. (c)  The  whole  term  of 
years  is  considered  as  vesting  in  the  legatee  for  life,  in  the  same 
manner  as  under  an  assignment  by  deed ;  but  on  his  decease  the 
term  is  held  to  shift  away  from  him,  and  vest,  by  way  of  executory 
bequest,  in  the  person  to  be  next  entitled.(c/)  Accordingly,  if  a 
term  of  years  be  bequeathed  to  A.  for  his  life,  and  i-fter  his  de- 
cease to  B.,  A.  will  have,  during  his  life,  the  whole  term  vested 
in  him,  and  B.  will  have  no  vested  estate,  but  a  mere  possibility, 
as  it  is  termed,(e)  until  after  the  decease  of  A. ;  and  this  possibil- 
ity, like  the  possibility  of  obtaining  a  real  estate,  was  formerly 
inalienable  at  law  unless  by  will,(/)  though  capable  of  assign- 
ment in  equity.(^)  But  by  the  act  to  amend  the  law  of  real 
property,(/i)  which  repeals  an  act  of  the  previous  session  passed 
for  the  same  purpose, (z)  it  is  now  provided  that  an  executory  and 
a  future  interest,  and  a  possibility  coupled  with  an  interest,  in 
any  tenements  or  hereditaments  of  any  tenure  may  be  disposed  of 

(r)   See  Principles  of  the  Law  of  Real  Property,  249,  2d  ed.  ;   256,  3d  ed.  ;  259,  4th  ed.; 
270,  5th  ed.  ;  284,  6th  ed. 

(d)  Matthew  Manning's  Case.  8  Rep.  95  ;   Lampert's  Case,  10  Rep.  47. 

(e)  See  Principles  of  the  Law  of  Real  Property,  223,  2d  ed.  ;   230,  3d  ed.  ;  231,  4th  ed.; 
240,  5th  ed.  ;  260,  6th  ed. 

(/)  Shep.  Touch.  230.  {h)   Stat.  8  &  9  Vict.  c.  106,  s.  6. 

(g)  Fearne,  Cent.  Rem.  548.  (/)   Stat.  7  &  8  Vict.  c.  76,  s.  5. 

personal  property  he  given  to  one  for  life,  A  bequest  of  a  life  estate  in  personal  prop- 
remainder  to  his  heirs,  or  to  the  heirs  of  his  erty,  gives  the  donee  a  right  to  consume  or 
body,  he  will  take  absolutely,  unless  there  be  wear  out  such  articles  as  cannot  otherwise  be 
words  to  show  that  only  an  estate  for  life  was  enjoyed  ;  and  the  donee's  liability  to  the  re- 
intended,  see  the  following  cases:  Keating  maindennan,  is  to  be  governed  by  the  intent 
V.  Reynolds,  1  Bay's  R.  80  ;  Exrs.  of  Moffat  of  the  donor,  collected  from  the  whole  will  ; 
V.  Strong,  10  Johns.  R.  12  ;  Guery  v.  Vernon,  German  v.  German,  27  Pa.  St.  R.  116  ;  Hol- 
1  Nott  &  McC.  R.  69  ;  Dott  et  al.  v.  Cunning-  man's  Ap.,  24  Id.  174  ;  but  where  a  bequest 
ton,  1  Bay's  R.  453;  Powell  v.  Glenn  et  al.,  for  life  is  made  of  personalty,  which  can  be  en- 
21  Ala.  R.  458  ;  Burden's  Admr.  v.  Burns's  joyed  without  being  consumed  or  decreased, 
Admr.  et  al.,  6  Id.  363  ;  Cruger  et  al.  v.  Hey-  though  waste  or  destruction  is  practicable, 
ward,  Exr.,  et  al.,  2  Dessaus.  R  94;  McGran  and  it  is  the  intention  of  the  testator  that 
V.  Davenport,  6  Port.  R.  319  ;  Williams  v.  the  legacy  should  be  in  the  possession  of  the 
Graves,  E.xr.,  17  Ala  R.  62;  Ewing  v.  Stan-  first  taker,  but  also  that  it  should  be  pre- 
difer  et  al.,  18  Id.  400  ;  Woodley  v.  Findlay  served  for  the  subsequent  enjoyment  of  the 
et  al.,  9  Id.  716  ;  Machen  v.  Machen,  15  Id.  remainderman  ;  the  executor,  under  the  act 
373  ;  Powell  v.  Brandon,  24  Missi.  R.  344  ;  of  the  legislature  of  Pennsylvania  of  24th  of 
Barker  v.  Crosby,  32  Barb.  R.  184:  Rewalt  Feb.,  18.34,  may  require  security  from  the 
V.  Ulrich,  23  Pa.  St.  R.  388  ;  Amelia  Smith's  first  legatee,  for  the  proper  return  of  the  gift, 
Ap.,  Id.  9;  Moore  v.  Brooks,  12  Gratt.  R.  before  placing  it  in  his  po?.se,«sion  ;  Cleven- 
135.  But  gee  to  the  contrary,  Paterson  v.  stine's  Ap.,  15  Pa.  St.  R.  496;  Rodgers  v 
Eliis's  Admr.,  11  Wend.  R.  259.  Rodgers,  7  Wat.  R.  15. 


do6  OF   PERSONAL   ESTATE    GENERALLY. 

by  deed.  B.  may,  therefore,  during  the  life  of  A.,  assign  his  ex- 
pectancy by  deed;  and  such  assignment  will  entitle  the  assignee 
,-,  ^^^^  to  the  whole  term  on  A.'s. decease.  If,  *however,  no  such 
^  "  -•  assignment  should  have  been  made,  B.  will  become,  on 
the  decease  of  A.,  possessed  of  the  whole  term,  which  will  then 
shift  to  B.  by  virtue  of  the  executory  bequest  in  his  favor.  The 
mere  circumstance,  indeed,  of  the  term  being  bequeathed  to  A. 
for  his  life  only  will  operate  to  shift  aw^ay  the  term  on  his  de- 
cease,(J)  independently  of  the  bequest  to  B. ;  so  that,  if  there  liad 
been  no  bequest  over  to  B.,  the  interest  of  A.  would  continue 
only  during  his  life,  and  the  residue  of  the  term  would  then  re- 
main part  of  the  undisposed  of  property  of  the  testator.  It  may, 
however,  be  doubted  whether  the  doctrine  of  the  executory  be- 
quest is  applicable  in  law  to  any  other  chattels  than  chattels 
real.(/.f 

The  strict  and  ancient  doctrine  of  the  indivisibility  of  a  chattel, 
though  still  retained  by  the  courts  of  law  has  no  place  in  the 
modern  Court  of  Chancery,  which,  in  administering  equity,  car- 
ries out  to  the  utmost  the  intentions  of  the  parties.  In  equity, 
therefore,  under  a  gift  of  personal  property  of  any  kind  to  A.  for 
his  Hfe,  and  after  his  decease  to  B.,  A.  is  merely  entitled  to  a  life 
interest,  and  B.  has,  during  the  life  of  A.,  a  vested  interest  in  re- 
mainder, of  which  he  may  dispose  at  his  pleasure,  and  the  Court 
of  Chancery  will  compel  the  person  to  whom  the  courts  of  law 
may  have  awarded  the  legal  interest  to  make  good,  the  disposi- 
tion.^ Accordingly,  if  the  personal  property  so  given  should 
consist  of  movable  goods,  equity  will  compel  A.,  the  owner  for 

(j)  Eyres  v.  Faulkland,  1  Salk.  2.31  ;  Ker  v.  Lord  Dungannon,  1  Dru.  &  War.  500,  528. 
(k)   Fearne,   Cont.  Rem.  413.     See,  however,  1  Jarm.  Wills,  793;   74  7,  2d  ed.  ;   Hoare  v. 
Parker,  2  T.  Rep.  376. 

1  But  see  Coopert).  Cooper,  2  Brevard's  R.  Ala.   R.   458;  Patterson  v.  Ellis's  Exr.,    11 

355  ;  Griggs  v.  Dodge,  2  D.ay's  R.  28  ;  Taber  Wend.   R.    259  ;   Bell   v.  Hogan,    1  Stew.  R. 

V.  Packwood,  Id.  52;  Nevison  et  al.  v.  Tay-  536  ;  Scott,  Exr.,  v.  Price,  Exr.,   2   Serg    & 

lor,  Admr.,  3  Halst.  R.  43;    Cordle's  Adrar.  Raw.   R.   59;  Williams   v.  Graves.  Exr.,    17 

V.  Corde's  Exr.,   fi   Munf.   R.   455;  Timber-  Ala.  R.  62;   Mifflin  v.  Neal,  Admr.,  6    Serg. 

lake  V.  Graves,   Id.  174  ;   Guery  v.  Vernon,  1  &  Raw.  R.  460  ;  Usilton  v.  Usilton  et  al.,  3 

Nott    &    McC.  R.   69  ;   Biscoe    v.   Biscoe,   6  Md.   Ch.  Decs.  36  ;  Woodley  v.  Findley  et 

Gill.  &  Johns.  R.  232  ;  Raborg  «.  Hammond,  al.,  9  Ala.   R.   716  ;  Machen   v.   Machen,  15 

2  Har.  &  Gill's  11.  42 ;  Royal  v.  Eppes,  Admr.,  Id.  373.     And  see  also  a7ite,  p.  2;J6,  note  1. 
2   Munf.   R.  479  ;  Da.shiel  v.  Dashiel,  2    Har.        '^  See  atite,  p.  236,  note  1. 
&  Gill's  R.  127  ;   Powell  v.  Glenn  et  al.,  21 


OF    SETTLEMENTS    OF    PERSONAL    PROPERTY.  '     337 

life,  to  furnish  the  sign  and  inventory  of  the  goods  and  an  un- 
dertaking to  take  proper  care  of  them,(/)  This  doctrine,  how- 
ever, is  comparatively  of  modern  date ;  for  formerly  the  Court  of 

Chancery  followed  the  rules  *of  law  in  the  construction  of  r-.^^^-, 

.  •  r'^2391 

such  gifts  ;  and  if  a  gift  of  movable  goods  had  been  made  ^         -* 

to  A,  for  his  life,  and  after  his  decease  to  B.,  they  would  not  have 
afforded  to  B.  any  assistance  after  A.'s  decease.(w)  But  if  the 
gift  had  been  of  the  use  or  evjoyment  of  the  goods  only  to  A.  for 
his  life,  and  after  his  decease  to  B.,  the  court  would  then  have 
assisted  B.  by  declaring  A.'s  representatives  after  his  decease  to 
be  trustees  only  for  the  benefit  of  B.(?i)  But  this  distinction  is 
now  exploded;  and  the  only  case  in  which  the  tenant  for  life  is 
now  entitled  absolutely  to  things  given  to  him  for  life  is,  that  of 
articles  quce  ipso  usu  consumuniur,  as  wines,  &c.,  a  gift  of  which  to 
a  person  for  his  life  vests  in  him  the  absolute  ownership. (o)  In 
all  other  cases,  as  we  have  said,  modern  equity  will  assist  the  do- 
nee in  remainder,  to  whom  any  gift  of  personal  estate  may  be 
made  after  the  decease  of  another  who  is  to  have  them  only  for 
his  yife.{}))  When,  therefore,  it  is  wished  to  make  a  settlement 
of  any  kind  of  personal  property,  the  doctrine  of  the  Court  of 
Chancery  is  at  once  resorted  to.  The  property  is  assigned  to 
trustees,  in  trust  for  A.  for  his  life,  and  after  his  decease  in  trust 
for  B.,  &c.  This  assignment  to  the  trustees  vests  in  them  the  whole 
legal  interest  in  the  property ;  and  in  a  court  of  law  they  are  held 
to  be  absolutely  entitled  to  it ;  for  the  Statute  of  Uses(5')  has  no 
application  to  any  kind  of  personal  estate.  But  in  equity  the 
trustees  are  compelled  to  pay  the  entire  income  to  A.  for  his  life, 
and  after  his  decease  to  B.,  and  so  on  according  to  the  trusts  of 
the  settlement;  and  if  B.  should  alien  his  interest  during  the  life 
of  A,,  the  trustees  will  be  bound,  on  having  notice  of  the  disposi- 
tion, to  stand  *possessed  of  the  property,  after  A.'s  de-  p^^n^m 
cease,  in  trust  for  the  alienee.(r)  L  "     J 

(I)  Fearne,  Cont.  Rem.  407 ;  Conduitt  v.  Soane,  1  Coll.  285. 

(ot)  Fearne,  Cont.  Rem.  402. 

(w)   Ibid.  404. 

(o)  Randall  v.  Russell,  3  Meriv.  190  ;  Andrew  v.  Andrew,  1  Coll.  090. 

(/?)  Fearne,  Cont.  Rem.  406. 

(q)   27  Hen.  VIII,  c.  10:  Principle.?  of  the  Law  of  Real  Property,  12f),  2d  ed.  ;   131,  3d 
A  4th  eds.  ;   136,  5th  ed.  ;.  142,  6th  ed. 

(r)   A  form  of  marriage  settlement  of  .stock,  and  other  personal  estate,  upon  the  usual 
trusts,  will  be  found  in  Appendix  (B). 

22 


338  OF   PERSONAL   ESTATE    GENERALLY. 

When  shares  in  joint  stock  companies  are  settled  in  the  man- 
ner above  mentioned,  it  sometimes  becomes  a  question  whether 
any  extraordinary  profit  whicli  may  be  divided  amongst  tlie 
shareholders  by  way  of  bonus  should  be  considered  as  capital 
or  as  interest.  The  equitable  tenant  for  life  is  too  frequently 
inclined  to  consider  himself  entitled  to  any  bonus  in  tlie  same 
manner  as  to  ordinary  dividends.  The  Court  of  Chancery,  how- 
ever, usually  considers  every  bonus,  whether  consisting  of  addi- 
tional joint  stock  or  shares,(.s)  or  simply  of  money,(^)  as  part  of 
the  capital,  unless  it  appear  to  be  nothing  more  than  an  increased 
dividend  arising  from  the  increased  profits  of  the  year.(w)  In 
the  absence,  therefore,  of  any  special  provision  to  the  contrary, 
every  bonus  ought  to  be  invested  upon  the  trusts  of  the  settle- 
ment, and  the  income  only  paid  to  the  tenant  for  life.^ 

By  a  modern  act  of  Parliament,(v)  on  the  decease  of  a  person 
entitled  to  a  life  interest  in  any  income,  made  payable  or  coming- 
due  at  fixed  periods,  of  any  property,  whether  real  or  personal, 
his  executors  or  administrators  are  entitled  to  recover  from  the 
remainderman  an  apportioned  part  of  the  next  payment  of  the 
income,  according  to  the  time  which  shall  have  elapsed  since 
the  last  period  of  payment,  up  to  and  including  the  day  of  the 

decease  of  such  person.'-'     And  when  any  other  limited 
r*2411  .  • 

■-         -■   ^interest  determines,  a  similar  right  to  an  apportionment 

(5)  Brander  v.  Brander,  4  Ves.  800  ;  Hooper  v.  Rossiter.  13  Price,  774 ;  S.  C,  McCleland. 
527. 

(t)  Paris  V.  Paris,  10  Ves.  185;  "Ward  v.  Combe,  7  Sim.  6.34.  See,  also,  Gilly  v.  Burley, 
22  Beav.  619,  624,  and  the  eases  there  collected. 

(u)  Barclay  v.  Wainewright.  14  Ves.  66;  Price  v.  Anderson,  15  Sim.  473;  Preston  v. 
Melville,  16  Sim.  163. 

(«)  Stat.  4  &  5  Will.  IV,  0.  22,  s.  2.     Re  MaxweU's  Trusts,  V.  C.  W.,  9  Jur.  N.  S.  350. 

1  In  Earp's  Ap.,  28  Pa.  St.  R.  368,  wher.e  a  was  held  that  the  surplus  fund  accumulated 

testator  devised  and  bequeathed  the  residue  by  the  company,  over  .and  above  the  current 

of  his  estate  to  hi.s  executors,  in  trust,  to  col-  dividends  at  the  time  of  the  death  of  the 

lect  the  rents,   income,  and  interest,  and  to  testator,  was  a  part  of  the  principal  of  the 

pay  one  equal  fourth  part  to  and  for  the  use  fund,  and  was  subject  to  the  trusts  declared 

of  each   of  his   four  children,    respectively  ;  in  the  will  ;   and  that  the  accumulations  on 

and   among  his  residuary  estate,  was  stock  the  stock  after  the  death  of  the  testator,  were 

held  by  the  testator  in  a  manufacturing  com-  as  much  a  part  of  the  income  of  the  principal, 

pany,  upon  which  large  surplus  profits,  over  as  the  current  dividends. 

and  above  the  current   dividends   declared,        2  j^i  common  law  there  can  be  no  appor- 

had  accumulated,  and  continued  to  accumu-  tionment  of  rent  ;  Zule  v.  Zule,  24  Wend.  R. 

late   for  several  years    after  his    death:    It  76;   Stillwell  r.  Doughty,  3   Bradf    R.   359; 


OF    SETTLEMENTS    OF    PERSONAL    PROPERTY. 


339 


is  also  given.  But  the  act  makes  no  apportionment  of  rent 
between  the  heir  or  devisee  and  the  executor  of  a  tenant  in  fee 
simple. (?^;)     And  where  the  property  ceases  with  the  interest, 

{ir)  Brown  v.  Amyot,   3  Hare,  173,  183;  Beer  t;.  Beer,  C.  P.  16  Jiir.  223,  225;   12  C.  B- 
60,  E.  C.  L.  R.  vol.  74  ;  Re  Clulow,  3  Kay  &  J.  689. 


Marys  v.  Anderson,  24  Pa.  St.  R.  272; 
Wegtly  V.  R.  R.,  2  Grant's  Cas.  243;  Bank 
of  Penna.  v.  Wise,  3  Wat.  R.  397,  in  which 
last  case  it  was  decided,  that  "the  idea  of 
apportioning  the  rent  that  becomes  payable, 
after  the  purchaser  of  a  reversionary  interest 
in  fee,  at  a  sheriflTs  sale,  has  paid  the  pur- 
chase-money, and  received  his  deed  of  con- 
veyance for  it,  between  him  and  the  defendant 
in  the  execution,  as  whose  estate  it  was  sold, 
is  unknown  to  the  law,  and  cannot  be  recon- 
ciled with  any  of  its  analogous  and  fixed 
principles."  See  also,  Martin  v.  Martin,  7 
Md.  R.  368.  And  where  a  lease  continued 
beyond  the  termination  of  a  life  estate,  it 
was  held  that  there  could  be  no  apportion- 
ment thereof,  and  that  the  rent  belonged  to 
whoever  had  the  estate  on  the  ■  rent  day  ; 
Marshall  v.  Moseley,  21  N.  Y.  R.  280.  By 
a  statute  of  Pennsylvania,  where  a  tenant 
fraudulently  removes  from  the  premises  the 
goods  and  chattels  liable  to  distress,  in  order 
to  deprive  the  landlord  of  his  remedy,  the 
rent  may  be  apportioned  up  to  the  time  of 
such  fraudulent  removal,  and  a  distress  forth- 
with made  ;  Brightly's  Purd.  Dig.  611,  sect. 
6  ;  where,  too,  a  reversioner  disposes  of  a  por- 
tion of  the  reversion,  the  rent  may  be  ap- 
portioned between  himself  and  his  vendee; 
Linton  v.  Hart,  25  Pa.  St.  R.  193. 

It  is  in  accordance  with  the  doctrine  that 
rent  cannot  be  apportioned  as  to  time,  that  it 
has  been  decided,  that  where  a  tenant  has 
been  evicted  of  any  portion  of  the  demised 
premises  by  his  landlord,  the  eviction  is  a  bar 
to  any  claim  by  the  landlord  for  rent ;  Shum- 
way  v.  Collins,  6  Gray's  R.  227;  Linton  v. 
Hart,  25  Pa.  St.  R.  193. 

If  one  is  entitled  for  life,  to  the  interest  of 
a  certain  sum  charged  on  real  estate,  and 
dies,  the  income  may  be  apportioned,  so  that 
the  interest  which  may  accrue,  between  the 
day  on  which  the  interest  was  regularly  pay 
able,  and  the  day  of  the  death,  will  be  paid 
to  the  executor  or  administrator  ;  Sweigart 


V.  Frey,  Admr.,  8  Serg.  &.  Raw.  R.  299;  see 
also  Green,  Exr.,  v.  Osborn,  17  Id.  171 ;  Cole 
V.  Patterson,  25  Wend.  R.  456. 

The  rule  of  law  which  refuses  apportion- 
ment of  rent  in  respect  of  time,  is  applicable 
to  all  periodical  payments  becoming  due  at 
fixed  intervals  ;  not  to  sums  accruing  de  die 
ad  diem.  Annuities,  therefore,  and  divi- 
dends on  money  in  the'funds,  are  not  apppr- 
tionable.  But  interest,  whether  the  princi- 
pal is  secured  by  mortgage  or  by  bond,  not- 
withstanding that  it  is  expressly  made  pay- 
able half  yearly,  may  be  apportioned,  for 
although  reserved  at  fixed  periods,  it  be- 
comes due  de  die  ad  diem  for  forbearance  of 
the  principal,  which  the  creditor  is  entitled 
to  recall  at  pleasure  ;  McKeen's  Ap.,  42  Pa. 
St.  R.  484. 

In  accordance  with  the  principle  that  the 
contract  is  terminated  by  the  act  of  God,  it 
has  been  held,  that  where  one  enters  into  a 
contract  of  hire  for  a  year,  and 'dies  before 
the  expiration  of  the  year,  his  wages  should 
be  apportioned  ;  Bacot  v.  Parnell,  2  Bail.  R. 
424 ;  George  v.  Elliott,  2  Hen.  &  Munf.  R. 
5  ;  Wolfe  v.  Howes,  20  N.  Y.  R.  197  ;  Bab- 
bitt V.  Riddell,  2  Grant's  Cas.  161. 

In  the  State  of  South  Carolina,  an  overseer 
hired  for  a  year,  who  is  turned  away  for  mis- 
conduct, may  nevertheless  recover  for  the  ser- 
vices actually  performed  while  he  conducted 
himself  properly ;  Eakin  v.  Harrison,  4 
McCord's  R.  249  ;  but  if  he  has  been  negli- 
gent in  his  duties,  or  loss  has  occurred  by  his 
leaving  the  service,  he  can  recover  nothing  ; 
Byrd  v.  Boyd,  Id.  246  ;  and  of  these  matters 
a  jury  will  judge,  as  well  as  of  the  amount  to 
which  he  may  be  entitled  ;  McClure  v.  Pyatt, 
Id.  26.  It  seems,  also,  in  the  same  State,  that 
'•  if  one  rents  a  house  for  a  year,  and  during 
the  term  it  is  rendered  untenable  by  a  storm, 
the  rent  ought  to  be  apportioned  according 
to  the  time  it  was  occupied;"  Ripley  v. 
Wightman,  4  McCord's  R.  447.' 


340  OF   PERSONAL   ESTATE   GENERALLY. 

and  does  not  go  over  to  another,  as  in  the  case  of  a  life  annuity, 
the  act  appears  inapplicable;  and  the  right  to  an  apportioned 
part  should  tlierefore,  if  desired,  be  expressly  conferred.(x)  The 
act  extends  only  to  instruments  executed,  and  wills  coming  into 
operation,  after  the  passing  of  the  act,  which  took  place  on  the 
16th  June,  1834 ;(y)  and  its  provisions  do  not  apply  to  any  case 
in  which  it  is  expressly  stipulated  that  no  apportionment  shall 
take  place,  or  to  annul  sums  made  payable  in  policies  of  assur- 
ance of  any  description.(2;)  Previously  to  this  act  no  apportion- 
ment was  made  of  annuities,  or  of  the  dividends  of  stock  settled 
in  trust  for  one  person  for  life,  with  remainder  to  another;  but 
the  remainderman  was  entitled  to  the  whole  of  the  annuity  or 
dividend  which  fell  due  next  after  the  decease  of  the  person 
entitled  for  life. (a)  But  in  a  case  where  the  tenant  for  life  of 
stock  died  on  the  day  on  which  a  half-year's  dividend  became 
due,  it  was  held  that  it  belonged  to  his  personal  estate.(6)  If  an 
annuity  were  given  for  the  maintenance  of  an  infant,(c)  or  of  a 
married  woman  living  separate  from  her  husband, (t?)  the  neces- 
sity of  the  case  was  considered  a  ground  for  presuming  that  an 
r*9zi9T  ^Ppoi'tionment  was  intended.  The  interest  of  money  *lent 
'-  '^-'  was  also  always  apportioned;  for  though  the  payment  of 
such  interest  be  made  half-yearly,  yet  it  becomes  due  de  die  in 
diem,  so  long  as  the  principal  remains  unpaid. (e) 

An  estate  tail,  such  as  that  created  by  a  gift  of  lands  to  a  man 
and  the  heirs  of  his  body,(/)  has  nothing  analogous  to  it  in  per- 
sonal property.  An  estate  tail  cannot  be  held  in  such  property 
at  law,  neither  does  equity  admit  of  any  similar  interest.  A  gift 
of  personal  property  of  any  kind  to  A.  and  the  heirs  of  his  body 


{x)  But  see  Carter  v.  Taggart,  16  Sim.  447. 

(y)   Mitchell  v.  Mitchell,  4  Beav.  549  ;  Knight  v.  Boughton,  12  Beav.  312. 
(2)   Stat.  4  &  5  Will.  IV,  c.  22,  s.  3. 

{a)   Pearly  v.  Smith,    3  Atk.   260  ;  Sherrard  v.    Sherrard,   3  Atk.   502  ;   Warden  v.  Ash- 
burner,  2  De  Gex  &  Smale,  366. 

(h)   Paton  V.  Sheppard,  10  Sim.  186. 

(c)  Hay  V.  Palmer,  2  P.  Wms.  501  ;   1  Swanst.  349,  note. 

(d)  Howell  V.  Hanforth,  2  W.  Black.  1016. 

(e)  Edwards  v.  Countess  of  Warwick,  2  P.  Wms.  176  ;   Banner  v.  Lowe,  13  Ves.  135  ;  Re 
Rogers's  Trusts,  1  D.  &  S.  339. 

(/)  See  Principles  of  the  Law  of  Real  Property,   28,   2d  ed.  ;  30,   3d  &  4th  eds.  ;   33,  5th 
&  6th  eds. 


OF    SETTLEMENTS   OF    PERSONAL   PROPERTY.  341 

will  simply  vest  in  him  the  property  given.(^)  And  in  the  con- 
struction of  wills,  where  many  informal  expressions  are  allowed 
to  vest  an  estate  tail  in  lands,  the  general  rule  is,  that  expressions, 
which  if  applied  to  real  estate  would  confer  an  estate  tail,  shall, 
when  applied  to  personal  property,  simply  give  the  absolute  in- 
terest,(A)  The  same  effect  will  be  produced  by  a  gift  of  such 
property  to  a  man  and  his  heirs.  The  words  "  heirs,"  and  "  heirs 
of  his  bod}',"  are  quite  inapplicable  to  personal  estate;  the  heir, 
as  heir,  has  nothing  to  do  with  the  personal  property  of  his  an- 
cestor.^ Such  property  has  nothing  hereditary  in  its  nature,  but 
simplj'^  belongs  to  its  owner  for  the  time  being.  Hence,  a  gift 
of  personal  property  to  A.  simply,  without  more,  is  sutficient 
to  vest  in  him  the  absolute  interest. (i)  Whilst,  under  the  very 
same  words,  he  would  acquire  a  life  interest  only  in  real  es- 
tate,(J)  he  will  become  absolutely  entitled  to  personal  property. 

*Thus  a  o'ift  of  lands  to  A.  for  life,  and  after  his  decease    r-.  ^,^-, 

1^243  I 
to  B.,  gives  to  B.  a  mere  life  interest  in  remainder  ex-    "-         -^ 

(g)   Fearne,  Cont.  Eem.  461,  46.3  ;  Doncaster  v.  Doncaster,  3  Kay  &  J.  26. 
(/;)   2  Jarm.  AVills,  ch.  44,  p.  5.34,  3d  ed. 
(t)   Byng  V.  Lord  Strafford,  6  Beav.  558. 

0)   Principles  of  the  Law  of  Real  Property,  17,  114,  2d  ed.  ;   18,  119,  3d  &  4th  eds.  ;   19, 
125,  5th  ed.  ;   131,  6th  ed. 


1  Comfort  V.  Mather,  2  Wat.  &  Serg.  R.  Raw.  R.  71  ;  Bendall  v.  Bendall,  24  Ala.  R. 
450,  was  the  case  of  a  bequest  "to  S.  E.,  295;  Coffin  v.  Elliott,  9  Rich.  Eq.  R.  244. 
wife  of  J.  E.,"  of  the  sum  of  §1000,  "to  have  By  a  subsequent  enactment  of  the  same  State 
and  to  hold  to  her  the  said  S.  E.,  her  heirs  (act  of  6th  May,  1844;  Purd.  Dig.  1017),  it 
and  assigns,  forever  ;"  and  S.  E.  having  died  was  provided,  that  "no  devise  or  legacy, 
before  the  testator,  it  was  held,  that  the  be-  hereafter  made  in  favor  of  a  brother  or  sister, 
quest  lapsed,  Sergeant,  J.,  remarking,  that  it  or  the  children  of  a  deceased  brother  or  sister, 
bad  been  "  repeatedly  and  uniformly  decided,  of  any  testator,  such  testator  not  leaving  any 
in  conformity  to  a  principle  of  law,  which  is  lineal  descendants,  shall  be  deemed  or  held 
said  to  have  been  borrowed  from  the  civil  to  lapse,  or  become  void  by  reason  of  the  de- 
law,  that  every  legacy  implies  a  condition  cease  of  such  devisee  or  legatee,  in  the  life- 
that  the  legatee  shall  survive  the  testator,  time  of  the  testator,  if  such  devisee  or  legatee 
and  that  where  the  legatee  dies  in  the  lifetime  shall  leave  issue  surviving  the  testator  ;  but 
of  the  testator,  the  legacy  lapses.  The  legis-  such  devise  or  legacy  shall  be  good  or  avail- 
lature  of  this  State  (Pennsylvania)  has,  by  able  in  favor  of  such  surviving  issue,  with 
the  act  of  8th  of  April,  18.33,  corrected  the  like  effect  as  if  such  devisee  had  survived  the 
rule,  where  a  legacy  is  in  favor  of  a  child,  or  testator,  saving  always  to  every  testator  the 
other  lineal  descendant  of  the  testator,  de-  right  to  direct  otherwise."  Under  this  lust 
daring  that  in  such  case  it  shall  survive  to  act  it  has  been  decided,  that  a  bequest  by  a 
the  issue  ;  but  they  have  not  .thought  fit  to  testator  to  his  sister,  who  was  dead  at  the 
go  further."  See  act  of  8th  of  April,  1833,  time  the  will  was  written,  but  who  left  chil- 
Purd.  Dig.  (18fi|),  p.  1017.  See  also  to  the  dren  who  survived  the  testator,  was  not  void  ; 
same  point,  Sword  v.  Adams,  3  Yeat.  R.  .34  ;  Minter's  Ap.,  40  Pa.  St.  R.  111. 
Dickinson  v.  Parvis  et  al.,  Exrs.,  8   Serg.  & 


342  OF    PERSONAL   ESTATE   GENERALLY. 

pectaiit  on  the  decease  of  A.;(/i)  unless  indeed  the  gift  be  b}"^  will 
under  the  act  for  the  amendment  of  the  laws  with  respect  to 
will8.(?)  But  a  gift  of  personal  property  to  A.  for  life,  and  after 
his  decease  to  B.,  gives  to  B,  a  vested  equitable  interest  in  the 
corpus  or  body  of  the  fund,  to  which  he  becomes  absolutely  en- 
titled, subject  only  to  A.'s  life  interest;  and  the  circumstance  of 
B.'s  dying  in  the  lifetime  of  A.  would  be  immaterial. (m) 

It  is  true  that  in  deeds  and  other  legal  instruments  it  is  usual 
to  transfer  personal  estate  absolutely,  by  the  use  of  the  words 
"executors,  administrators,  and  assigns."  As  real  estate  is  con- 
veyed to  a  man,  his  heirs  and  assigns, (>i)  so  personal  property  is 
assigned  to  him,  his  executors,  administrators,  and  assigns.  The 
executor  or  administrator  is,  as  we  shall  see,  the  person  who  be- 
comes legally  entitled  to  a  man's  personal  estate  after  his  decease; 
in  the  same  manner  that  a  man's  heir  or  assign  becomes  entitled 
to  his  real  propert3^  But  the  analogy  extends  no  further.  There 
is  no  necessity  for  the  use  of  these  terms(o)  as  there  is  for  the  em- 
ployment of  the  word  "heirs."  These  terms,  however,  are  con- 
stantly employed  in  conveyancing  as  words  of  limitation  of  an 
absolute  interest;  and  a  rule  has  sprung  up  with  respect  to  their 
construction  similar  to  the  rule  in  Shelley's  case,  by  which  the 
word  "  heirs,"  when  following  a  life  estate  given  to  the  ancestor, 
^  ^.  .^    is  merely  a  word  of  limitation,  *giving  to  such  ancestor 

r^244n  '  o     o 

*-  -^  an  estate  in  fee.f^j)  Thus,  if  money  or  stock  be  settled 
in  trust  for  A.  for  life,  and  after  his  decease  in  trust  for  his  ex- 
ecutors, administrators,  and  assigns,  A.  will  be  simplj^  entitled 
absolutely  ;{q)  in  the  same  manner  as  a  gift  of  lands  to  A.  for  his 
life,  with  remainder  to  his  heirs  and  assigns,  gives  him  an  estate 
in  fee  simple.     But  as  the  rule,  so  far  as  it  applies  to  personal 

(/.•)   GoodtiUe  d.  Richards  v.  Edmonds,  7  T.  Rep.  635. 

(/)   Stat.  7  Will.  IV,  &  1  Vict.  c.  26,  s.  28. 

(»i)  Benyon  v.  Maddison,  2  Bro.  C.  C.  75. 

(w.)  Principles  of  the  Law  of  Real  Property,  115,  2d  ed.  ;  120,  .3d  &  4th  eds.  ;  126,  5th 
ed.  ;   132,  6th  ed. 

(o)  Elliott  V.  Davenport,  1  P.  Wm.s.  84.  See  Earl  of  Lonsdale  v.  Countess  of  Berchtoldt, 
1  Kay,  646. 

ip)  See  Principles  of  the  Law  of  Real  Property,  207,  2d  ed.  ;  214,  3d  ed.  ;  215,  4th  ed.; 
224,  5th  ed.  ;   234.  6th  ed. 

(g)  Co.  Lilt.  54  b  :  Haines  v.  Hames,  2  Keen,  646  ;  Grafftey  v.  Uumpage,  1  Beav.  46  ; 
Howell  V.  Gayler,  5  Beav.  157 ;  Meryon  v.  Collett,  8  Beav.  386  ;  Morris  v.  Howes,  4  Hare, 
599. 


OF    SETTLEMENTS   OF    PERSONAL    PROPERTY.  343 

property,  is  not  founded  on  the  same  strict  principle  as  the  rule 
in  Shelley's  case,  a  gift  of  such  property  to  the  executors  or  ad- 
ministrators (not  adding  assigns)  of  a  person  who  has  taken  a 
l^evious  life  interest  may,  under  peculiar  circumstances,  he  con- 
strued as  giving  him  no  further  interest  in  such  property  ;(r) 
whilst,  under  the  same  circumstances,  the  word  "heirs"  in  a  gift 
of  real  estate  would  have  given  him  the  fee  simple. 

As  no  estates  can  subsist  in  personal  property,  it  follows  that 
the  rules,  on  which  contingent  remainders  in  freehold  lands  de- 
pend for  their  existence,  have  never  had  any  application  to  con- 
tingent dispositions  of  personal  property.  Such  dispositions  par- 
take rather  of  the  indestructible  nature  of  executory  devises  and 
shifting  uses.  Thus  a  gift  of  lands  to  A.  for  his  life,  and  after 
his  decease  to  such  son  of  A.  as  shall  first  attain  the  age  of 
twenty-one  years,  creates  a  contingent  remainder,  which  will  fail 
ill  the  event  of  no  son  of  A.  having  attained  the  prescribed  age 
at  the  time  of  his  decease.(5)  The  reason  of  this  failure  depends 
on  the  ancient  rule,  that  there  must  always  be  some  defined 
owner  of  the  *feudal  possession ;  and,  consequently,  be-  r^245] 
tween  the  time  of  the  death  of  A.  and  the  time  of  his 
son's  attaining  the  age  of  twenty-one  years,  some  owner  of  the 
freehold  ought  to  have  been  appointed,  in  whom  the  feudal  pos- 
session might  continue.(^)  Personal  property,  however,  has  evi- 
dently nothing  to  do  with  these  feudal  rules  relating  to  possession. 
If,  therefore,  a  gift  be  made  of  personal  property  to  trustees,  in 
trust  for  A.  for  his  life,  and  after  his  decease,  in  trust  for  such 
son  of  A.  as  shall  first  attain  the  age  of  twenty-one  years;  or  if  a 
term  of  years  be  bequeathed  to  A.  for  his  life,  and  after  his  de- 
cease to  such  son  of  A.  as  shall  first  attain  the  age  of  twenty-one 
years ;  it  will  be  immaterial  whether  or  not  the  son  attain  the  age 
of  twenty-one  years  in  the  lifetime  of  his  father.  On  his  attain- 
ing that  age,  he  will  become  entitled  quite  independently  of  his 
father's  interest.  His  ownership  will  spring  up,  as  it  were,  on 
the  given  event  of  his  attaining  the  age.    But  as  the  indestructible 

(r)  Wallis  V.  Taylor,  8  Sim.  241  ;  see  ]  Beav.  52  ;  Daniel  v.  Dudley,  1  Phi.  1  ;  Attorney- 
General  V.  Malkin,  2  Phi.  64  ;  Mackenzie  v.  Mackenzie,  .3  Mac.  &  Gord.  559. 

(.v)   Felting  V.  Allen,  12  Mee.  k  Wels.  279  ;  5  ILire,  57;i. 

(I)  Principlea  of  the  Luw  of  Real  Property,  209,  1st  ed.  ;  217,  2d  ed.  ;  224,  3d  k  4lh  eds.  ; 
23.'i,  5th  ed.  ,  240.  0th  ed. 


344  OF    PERSONAL   ESTATE   GENERALLY. 

nature  of  these  future  dispositions  of  personal  estate  might  lead 
to  trusts  of  indefinite  duration,  the  rule  of  perpetuities,  which 
confines  executor}'  interests  within  a  life  or  lives  in  heing,  aiyl 
twentj'-one  years  afterwards,  with  a  further  allowance  for  the 
time  of  gestation,  should  it  exist,(w)  applies  equally  to  personal 
as  to  real  estate.  And  the  further  restriction  on  the  accumula- 
tion of  income  imposed  hy  the  Thellusson  Act(;r)  applies  to  trusts 
for  the  accumulation  of  the  income  of  personal  estate  as  well  as 
real. 

Equitable  interests  in  personal  property  of  a  future  kind  may 
be  created  through  the  instrumentality  of  *powers,  in  a 
^  "  -^  similar  manner,  and  to  the  same  extent,  as  future  estates 
in  \a.\id.{i/)  Thus  stock  in  the  funds  may  be  vested  in  trustees 
upon  such  trusts  as  B.  shall  by  any  deed  or  by  his-will  appoint, 
and  in  default  of  and  until  any  such  appointment,  in  trust  for 
C,  or  upon  any  other  trusts.  Here  C  will  have  a  vested  interest 
in  the  stock,  subject  to  be  divested  or  destroyed  by  B.'s  exercis- 
ing his  power  of  appointment;  and  B.,  though  not  owner  of  the 
stock,  has  power  to  dispose  of  it  by  deed  or  will,  and  may  if  he 
please  appoint  to  himself;  in  which  case  the  trustees  will  be 
bound  to  transfer  it  to  him.  If  the  power  should  not  be  exer- 
cised by  B.,  C.  will  then  be  entitled  absolutely;  and  will  not,  as 
in  the  case  of  landed  property,  be  subject  to  judgment  debts  in- 
curred by  B.,(2')  or  to  any  other  of  his  debts.  But  if  B.  should 
exercise  his  power  by  deed  without  valuable  consideration,  or  by 
will,  in  favor  of  a  third  person,  the  stock  so  appointed  would  be 
considered  in  equity  as  part  of  the  assets  of  B.  the  appointor,  and 
would  be  subject  to  the  demands  of  his  creditors  in  preference  to 
the  claim  of  the  appointee. (a)     In  case  of  bankruptcy, (6)  it  is  also 

(u)  Principles  of  the  Law  of  Real  Property,  242,  1st  ed.  ;  261,  2d  ed.  ;  259,  3d  ed.  ;  262, 
4th  ed.  ;  272.  5th  ed.  ;  286.  6th  ed. 

(x)  Stat.  39  &  40  Geo.  Ill,  c.  98  ;  Principles  of  the  Law  of  Ileal  Property,  243,  1st  ed.  ; 
253,  2d  ed.  ;  260,  3d  ed.  ;  263,  4th  ed'.  ;   274,  5th  ed.  ;   288,  0th  ed. 

iy)  See  Principles  of  the  Law  of  Real  Property,  231  et  seq.,  1st  ed.  ;  236,  2d  ed.  ;  243,  3d 
ed.  ;  245,  4th  ed.  ;  255,  5th  ed.  ;  266,  6th  ed. 

(z)   Ibid. 

(a)  Lassells  v.  Cornwallis,  2  Vern.  465;  Bainton  v.  Ward,  2  Atk.  172.  The  doctrine 
applies  also  to  appointments  of  real  estate.  See  Fleming  v.  Buchanan,  3  De  Gex,  M.  &  G. 
976. 

(A)  Stat.  12  &  13  Vict.  c.  106,  s.  147,  repealing  stat.  0  Geo.  IV,  c.  16,  s.  77,  to  the  same 
effect. 


OF    SETTLEMENTS   OF    PERSONAL    PROPERTY.  345 

provided  that  all  powers  vested  in  the  bankrupt,  which  he  might 
legally  execute  for  his  own  benefit  (except  the  right  of  nomina- 
tion to  any  vacant  ecclesiastical  benefice),  may  be  executed  by 
the  assignees  for  the  benefit  of  the  creditors  in  the  same  manner 
as  the  bankrupt  might  have  ex-ecuted  the  same. 

The  rules  respecting  the  necessity  of  a  compliance  with  the 
terms  and  formalities  of  the  power,  whenever  it  *is  exer-  r-.)..^^^! 
cised  otherwise  than  by  will,((?)  and  the  relief  afforded  by 
the  Court  of  Chancery  on  the  defective  exercise  of  a  power,(t/) 
apply  as  well  to  personal  as  to  real  property.  Powers  over  per- 
sonal estate  may  also  be  exercised  by  women,  without  their  hus- 
bands' consent,  and  also  in  favor  of  their  husbands,  in  the  same 
manner  as  powers  over  land;(e)  and  the  provision  of  the  recent 
Wills  Act,  which  requires  wills  made  in  exercise  of  powers  to  be 
executed  and  attested  like  all  other  wills,(/)  applies  equally  to 
powers  over  personal  estate.  A  general  bequest  of  personal  es- 
tate will  also  now  include  any  personal  estate  which  the  testator 
may  have  only  arjwwer  to  appoint  as  he  may  think  fit,  in  the  same 
manner  as  a  general  devise  of  real  estate  will  comprise  real  estate 
subject  to  any  such  power.(^) 

A  frequent  instance  of  the  employment  of  a  power  over  per- 
sonalty occurs  in  the  case  of  children's  portions,  which  are  usu- 
ally settled  on  all  the  children  equally,  subject  to  a  power  given 
to   the   parents   to   appoint  the  shares  in  a  diflerent  manner.^ 

(r)   See  Principles  of  the  Law  of  Real   Property,  238,  2d  ed.  ;   245,  3d  ed.  ;   247,  4th  ed.  ; 
267,  5th  ed.  ;   2C,H,  fith  ed.     See,  now,  as  to  deeds,  stat.  22  &  23  Vict.  c.  35,  s.  12. 
{//)   Ibid.  239,  2d  ed.  ;  246,  3d  ed.  ;  248,  4th  ed. ;  258,  5th  ed   ;  269,  6th  ed. 
(^)   Ibid.  241,  2d  ed.  ;   248,  3d  ed.  ;   250,  4th  ed.  :   260,  5th  ed.  ;   279,  6lh  ed. 
(/)  Ibid.  240,  2d  ed.  ;   247,  3d  ed.  ;  249,  4th  ed.  ;  259,  5th  ed.  ;   271,  6th  ed. 
(^)   Ibid.  242.  2d  ed.  ;  249,  .3d  ed.  ;  251,  4lh  ed.  ;   2(51,  5th  ed. ;   273,  6th  ed. 


'  Whenever  a  person  gives  property,  and  &  Mar.  R.  470;  Erick.son  v.  Wilhird,  1  N.  II. 

points  out  with  certiiinty  the  objects  who  are  R.    232;  Jackson  v.  Jackson,   2   Pa.   St.   R. 

to  take,  the  property  itself,  and  the  way  in  212;   Mitchells  v.  Johnsons,  Ac,   6   Leigh's 

which  it  shall  go,  that  creates  a  trust,  unless  R.  461  ;   Still  v.  Spear,  45  Pa.  St.  R.  171. 
he  shows  clearly,  that  his  desire  expressed,         This  doctrine  is  particularly  applicable  to 

may  be  controlled  by  soipe  person  to  whom  those  cases  where,  a  testator  has  bequeathed, 

he  has  given  a  discretion  to  defeat  it ;  Gilbert  or  devised  property  to  one,  with  a  "desire, 

V.  Chapin,  19  Conn.  II.  342;  Hunter  tJ.  Stem-  "hope,"  or  "recommendation,"  that  he  will 

bred<;e,  12   Geo    R.  194;   Gibbs  v.  Marsh,  3  appoint  it  among  a  certain  class,  or  to  such 

Metcf.  R.  243  ;  Lucas  v.  Lockhart,  10  Siued.  of  a  designated  class,  a.s  he  shall  choose  ;  the 


346 


OF    PERSONAL   ESTATE    GENERALLY. 


"Wlien  such  a  power  is  excM'cised,  the  shares  previously  vested  in 
the  children  are  divested  from  them,  and  new  shares  ane  vested 


words    "di'sire,"    "hope,"    "recommend," 
Ac,  being  considered  sufficiently  certain,   if 
|\       the   objects,    and   the   suhject-mntter   of  the 
I  trust,  are  clearly  indicated  ;  and  the  discre- 

tion reposed  by  the  testator  in  the  donee  of 
the  power,  being  limited  to  certain  individu- 
als of  a  class,  and  on  no  account  to  be  exer- 
cised without  that  limit,  is  regarded  as  suf- 
ficiently clear  to  raise  a  trust ;  Gibbs  v. 
Marsh,  2  Metcf  R.  243  ;  Lucas  v.  Lnckhart, 
10  Smed.  &  Mar.  R.  470  :  Erickson  v.  Wil- 
lard,  1  N.  H.  R.  2.32  ;  Bull  v.  Bull,  8  Conn. 
R.  47  ;  The  New  Parish  in  Exter  v.  Odwine 
.  et  al.,  7  N.  H.  R.  142  ;  Dominick  v.  Sayre,  .3 
^  Sandf  Super.  C.  R.  555  ;  Green  r.  Collins,  6 
Ired.  R.  1.39;  Withers  et  al.  v.  Yeadon, 
Admr.,  1  Rich.  Eq.  R.  324;  Jarnagin  v.  Con- 
way et  al.,  2  Humph.  R.  50;  Mitchells  v. 
Johnsons,  Ac.  6  Leigh's  R.  461;  Negroes  v. 
Plummer,  17  Md.  R.  166.  But  if  the  discre- 
tion or  confidence  reposed  in  the  appointor, 
is  such  as  to  allow  him  to  defeat  the  ultimate 
desire  of  the  testator,  there  can  be  no  trust, 
for  one  of  the  certainties  incident  to  every 
trust  is  then  deficient,  by  reason  of  the  ex- 
treme license  vested  in  the  donee  of  the 
power;  Harper  v.  Phelps,  21  Conn.  R.  270; 
Lillard  v.  Robinson,  3  Litt.  R.  415  ;  Burbank 
V.  Whitney,  24  Pick.  R.  146  ;  Ellis  et  al.  v. 
Ellis's  Admr.,  15  Ala.  R.  296.  In  the  lan- 
guage of  the  English  cases,  the  power  of  ap- 
pointment must  be  one,  "which  it  is  the  duty 
of  the  party  to  execute,  made  his  duty  by  the 
requisition  of  the  will,  put  upon  him  as  such 
by  the  testator,  who  has  given  him  an  interest 
extensive  enough  to  enable  him  to  discharge 
it,  he  is  a  trustee  for  the  exercise  of  the  power, 
and  not  as  having  a  discretion,  whether  he 
will  exercise  it,  or  not ;  and  the  court  adopts 
the  principle  as  to  trusts  ;  and  will  not  per- 
mit his  negligence,  accident,  or  other  circum- 
stances, to  disappoint  the  interests  of  those, 
for  whose  benefit  he  is  called  upon  to  execute 
it ;"  Brown  v.  Iliggs,  8  Yes.  R.  574  ;  Piersou 
v.  Garnet,  2  Brown's  Ch.  R.  38  ;  Prevost  v. 
Clarke,  2  Madd.  Ch.  R.  458.  It  is  often  a 
matter  of  considerable  difficulty,  to  determine 
whether  a  discretion  thus  granted,  is  sufiicient 
to  defeat  a  trust  or  not,  as  will  be  seen  by  a 


comparison  of  the  cases  of  Coates's  Appeal, 
2  Pa.  St.  R.  129  ;  McKonkey's  Appeal,  13 
Pa.  St.  R.  253  ;  and  Pennock's  Estate,  20  Id. 
268,  which,  although  under  different  names, 
are  the  same  case,  decided  differently  three 
several  times;  the  facts  as  reported  disclose, 
that  a  testator  bequeathed  to  his  wife  the  use 
of  his  real  estate  during  her  life,  and  his  per- 
sonal property  absolutely,  •'  having  full  con- 
fidence, that  she  would  leave  the  surplus,  to  be 
divided  at  her  decease,  justly  among  my  chil- 
dren." By  the  first  of  the  three  cases  last 
cited,  it  was  decided,  that  this  bequest  was  a 
trust  for  the  children  ;  by  the  second,  that  it 
was  a  trust  as  to  the  surplus,  after  the  death 
of  the  wife  ;  and  by  the  third,  that  it  was  no 
trust  at  alL  This  last  is,  without  doubt,  the 
correct  decision,  being  in  accordance  with  the 
principles  above  alluded  to ;  for,  to  quote 
from  the  opinion  of  Chief  Justice  Gibson,  in 
McKonkey's  Appeal,  13  Pa.  St.  R.  258  :  "It 
is  plain,  that  she"  (the  wife  of  the  testator) 
"was  to  use  not  only  the  income  of  the  per- 
sonal estate,  but  the  estate  itself,  as  if  she 
were  the  untrammelled  owner  of  it ;'"  that  is, 
the  discretion  reposed  by  the  testator  in  his 
wife,  was  so  great,  as  to  give  her  an  option  to 
defeat  his  desire,  if  she  s^w  fit,  and  conse- 
quently there  could  be  no  trust,  as  was  very 
properly  concluded  on  a  third  hearing  of  the 
case.  In  the  case  of  Harrisons  v.  Harrisons' 
Admrx.,  2  Gratt.  R.  1,  however,  upon  con- 
struction of  the  following  words  of  a  will,  it 
was  held,  that  there  was  an  absolute  trust  for 
the  children,  subject  to  the  wife's  use:  "In 
the  utmost  confidence  in  my  wife,  I  leave  to 
her  all  my  worldly  goods,  to  sell,  or  keep  for 
distribution  among  our  dear  children,  as  she 
may  think  proper.  My  whole  estate,  real  and 
personal,  are  left  in  fee  simple  to  her;  only 
requesting  her  to  make  an  equal  distribution 
among  our  heirs  ;  and  desiring  her  to  do  for 
some  of  our  faithful  servants,  whatever  she 
may  think  will  most  conduce  to  their  welfare, 
without  regard  to  the  interest  of  my  heirs." 
Again,  the  term  used  by  the  testator  to  desig- 
nate the  class  intended  to  take — among  whom 
the  appointor  may  exercise  his  discretion — 
must  not  be  too  general ;  that  is,  so  general 


OF    SETTLEMENTS    OF    PERSONAL    PROPERTY. 


347 


in  tliem  by  the  operation  of  the  power.     Formerly,  if  such  a 
power  were  so  worded  as  not  to  authorize  an  exclusive  appoint- 


as  to  give  rise  to   an  uncertaintj^  otherwise 
there  will  be  no  trust,  and  in  default  of  ap- 
pointment, the  property  will  go  to  the  heir  at 
law,  if  real  estate,  or  if  personal  property,  to 
the  next  of  kin,  according  to  the  statute  of 
distributions;  Hill's  Exrs.  v.  Bowman  et  al.j 
7   Leigh"s    R.    C50  ;     Shermer    v.    Shermer's 
Exrs.,    1    Wash.    (Va.)    R.    206;    Ralston    v. 
Waler,  44   Pa.   St.  R.  279 ;  in   other  words, 
the  persons  who  are  to  take,  must  be  a  re- 
stricted and  clearly  ascertainable  class,  and 
can  never  be  beyond  those  of  children  or  re- 
lations, of  the  donor  or  donee  of  the  power  ; 
Mahon   v.  Savage,  1    Schoale  &  Lefroy's  R. 
Ill;  Harding  v.  Glyn,  1  Atk.  R   409;  Mor- 
ris V.  Owen  et  al.,  2   Call's  R.  520;  Cole  v. 
Wade,  16  Ves.  R.  27;  Ray  v.  Adams,  3  Myl. 
&  K.  R.  237;  Doyley  v.  Att.-Gen.,   4   Vin. 
Ab.  485  ;  Witts  v.  Boddington,  3  Bro.  C.  R. 
95  ;  Cathey  v.   Cathey,   9   Humph.    R.   470  ; 
Hudson  V.  Hudson's  Admr.,  6  Munf.  R.  352 ; 
Dominiek  v.  Sayre,  3  Sandf.  S.  R.  555  ;  Fra- 
zier  V.  Frazier's  Exrs.  et  al.,  2   Leigh's  R. 
642  ;   Grant  v.  Lynam,  4  Russ.  R.  292  ;  thus, 
the   word  "family,"  has  been  held  too  gen- 
eral ;  Tolson  V.  Tolson,  10  Gill  &  Johns.  R. 
159;  Cruwys   v.   Coleman,    9    Ves.    R.    319; 
AVright  V.  Atkins,  1   Turn.  &  Russ.  R.  157  ; 
Stubbs  V.  Sargon,  2   Keen's  R.  255  ;   and  so 
of  the  word  "relatives;"  Gilbert  v.  Chapin, 
19    Conn.    R.    342;    Dorainick   v.    Sayre,    3 
Sandf.   Super.    C    R.   555;   or    "relations;"' 
Varrell   v.  AVendell,  20  N.   H.  R.  431  ;  but. 
on  the  other  hand,  "male  descendants  of  the 
name  of  Dominiek,"  has  been  held  to  desig- 
nate a  chiss,  who  would  all  take  equally  in 
default  of  appointment  ;  Dominiek  v.  Sayre, 
3   Sandf.  Super.   C.   R.   556  ;  and  the  words 
"members    of   my    family,'"    have    been    re- 
garded   as    sufficiently    certain    to    create    a 
trust;  Frazier,  &c.,  v.  Frazier's  Exrs.,  &c.,  2 
Leigh's  R   642. 

Where  the  power  is  to  appoint  among  a 
certain  class,  all  must  have  something  ;  Mc- 
Konkey's  Appeal,  13  Pa.  St.  R.  253  ;  Grimke 
V.  Exrs.  of  Grimke,  1  Dessausa.  R  377  ; 
Ilaynesworth  v.  Cox,  Harp.  Ec).  119,  n.  ; 
Fronty  v.  Fronty,  Bail.  Eq.,  Ap.  517  ;  With- 
ers et  al.  V.  Yeadon,  Admr.,  1  Rich.  Eq.  R. 


324;  Cathey  v.  Cathey  et  al.,  9  Humph.  R. 
470  ;   Knight  v.   Yarborough,   Gilm.    R.   27  ; 
Hudsons  V.  Hudsons'  Admr  ,  6  Munf.  R.  352  ; 
Mitchells  v.  Johnsons,  &c.,  6  Leigh's  R.  401  ; 
the  word  among,  indicates  that  the  discretion 
is  limited  to  all,  and  to  be  exercised  only  as 
regards  the   proportion   in   which  each  is  to 
take,  which,  of  course  need  not  be  equally  ; 
Withers  et  al.  v.  Y'eadon,  Admr.,  1  Rich.  Eq. 
R.    324 ;    Knight  v.  Y'arborough,    Gilm.    R. 
27  ;  Mitchells  v.  Johnsons,  &c.,  6  Leigh's  R. 
461  ;  though  see  to  the  contrary,  Bolton  v. 
De   Peyster,  25  Barb.  R.  539  ;   Ingraham  v. 
Meade,    3  Wallace,   Jr.    R;  but   no  illusory 
appointment  will  be  valid;  Grimke  v.  Exrs. 
of  Grimke,  1  Dessauss.  R.  377  ;  for  that  would 
not  be  fulfilling  the  intention  of  the  testator, 
though  the  English  practice  of  setting  aside 
certain  appointments  as  illusory,  it  seems,  is 
not  known  as  part  of  the  Pennsylvania  juris- 
prudence ;  Ingraham  y.  Meade,  c/w^^  ;   GraefF 
V.  De  Turk,  44  Pa.  St.  R.  532.     If,  however, 
the  donee  of  the  power,  has  the  power  of  ap- 
pointing to  such  of  the  class  as  he  may  see  fit, 
he  may  appoint  to  one  only,  for  that  is  in  ac- 
cordance with  the  discretion  reposed  in  him  ; 
Curr  V.  Crain  et  al.,  2  Eng.  R.  241  ;  Ball  v. 
Ball,  8  Conn.  R.  47  ;  Lasley  v.  Blakeman,  4 
B.  Mon.  R.  540  ;  where,  however,  one  left  an 
estate  to  trustees,  to  pay  to  suck  brothers  and 
sisters   of  my  daughter  and  their  children, 
and  in  such  proportions,  as  she  shall,  &c.,  di- 
rect and  appoint,  my  will  being,  that  she  shall 
have  power  to  dispose  of  the  same  among  her 
said  brothers  and  sisters  and  their  children, 
as  she  may  think  fit,  it  was  held,  that  each 
brother  and  sister  was  entitled  to   some  por- 
tion  of  the  fund  ;  Lippincott  v.  Ridgway,  2 
Stockt.  R.  164.     But  in    either  case,  if  the 
appointor  does  not  exercise  the  power,  all  of 
the  cla.ss  will  take,  for  in  both  instances  the 
testator  has  indicated  the  class,  as  the  recipi- 
ents of  his  bounty  ;  in  the  one  case,  granting 
to    a    third    person   the    power   to   divide   it 
among  them   as  he  will,  in  the   other,  allow- 
ing  him  to  give  it   to   one  of  the  class  men- 
tioned, if  he  chooses;   Carr  v.  Crain  et  al.,  2 
Eng.  R.   241  ;   Bull   v.  Bull,  8  Conn.   R.  47  ; 
Collins  V.  Carlisle,  7  B.  Mon.  R.  14  ;   Emory 


348  OF    PERSONAL   ESTATE    GENERALLY. 

ment  to  some  or  one  of  the  children,  it  was  held  by  the  Court  of 
Chancerj,  as  a  rule  of  equity,  that  each  child  ought  to  have  a 
substantial  share;  and  an  appointment  to  any  *child  of  a 
■-  -"  very  small  share  was  called  an  illusory  appomfment,  and 
was  held  void.(A)  But  this  doctrine  having  given  rise  to  diffi- 
culties and  family  disputes,  from  the  uncertainty  of  the  question 
what  was  too  small  or  what  a  sufficient  share,  the  meddlesome 
doctrine  of  equity  on  this  point  was  a  few  years  ago  abolished 
by  act  of  Parliament ;(z)  and  now  the  appointment  of  any  share, 
however  small,  cannot  be  set  aside  on  the  ground  of  its  being 
illusory.  The  act  extends,  as  did  the  doctrine,  to  real  estate  as 
well  as  personal;  but  landed  property  is,  from  its  nature,  seldom 
cut  up  into  little  portions. 

Although  no  appointment  is  now  void  for  being  illusory,  yet 
where  an  exclusive  appointment  is  not  authorized,  any  appoint- 
ment, by  which  any  object  of  the  power  would  be  entirely  ex- 
cluded, is  still  void.     Thus,  if  1000^.  be  given  to  A.,  B.,  and  C. 

(h)   1  Sugd.  Pow.  508  ct  seq.  ;  449,  8th  ed.  ;  Chance  on  Powers,  396  et  seq. 
(i)   Stat.  ]1  Geo.  IV,  k  1  Will.  IV,  c.  46. 

et  al.  V.  The  Judge  of  Probate,  7  N.  H.  R.  So  restricted  is  this  power  of  appointment 
142;  Dominick  v.  Sayre,  3  Sandf.  Super.  C.  to  the  class  specified,  that  it  has  been  held, 
K.  555  ;  (xreen  v.  Collins,  6  Ired.  L.  R.  139  ;  that  a  power  to  appoint  to  children,  will  not 
McKonkey's  Appeal,  13  Pa.  St.  R.  253;  authorize  an  appointment  to  grandchildren; 
Thomas  v.  Thomas,  1  Raw.  R.  118;  Withers  Rankin  et  al  v.  Hoyle  et  al.,  6  Ired.  Eq.  R. 
et  al.  V.  Yeadon,  Admr.,  1  Rich.  Eq.  R.32i;  161  ;  Jarnagin  v.  Conway  et  al.,  2  Humph. 
Cathey  v.  Cathey  et  al.,  9  Humph.  R.  470;  R.  60;  Morris  v.  Owen  et  al.,  2  Call's  R. 
Morris  t^.  Owen  et  al.,  2  Call's  R.  520  ;  Mc-  520;  Hudsons  v.  Hudsons'  Admr.,  6  Munf. 
Gaughey's  Admr.  v.  Henry,  15  B.  Mon.  R.  R.  352;  Lasley  v.  Blakeman,  4  B.  Mon.  R. 
383  ;  Cruse  v.  McKee,  2  Head's  R.  1 ;  Rogers  540  ;  Little  v.  Bennett,  6  Jones  Eq.  R.  156  ; 
V.  Rogers,  2  Id.  660;  and  this  is  in  accord-  Ilorwitz  v.  Norris,  49  Pa.  St.  R.  213. 
ance  with  that  principle  of  law  which  pre-  But  where  there  are  no  children,  or  there 
scribes,  that  where  there  is  a  general  and  a  are  strong  and  conclusive  circumstances,  to 
particular  intention  manifested  by  the  tes-  show  that  such  was  the  intention  of  the  tes- 
tator, the  general  intention  shall  prevail,  tator,  grandchildren  will  take  under  such  a 
though  the  particular  intention  be  defeated  :  bequest  to  children  ;  Cutter  v.  Doughty,  23 
Heirs  of  Capel  v.  McMillan,  Admr.,  8  Port.  Wend.  R.  522;  Ruff  v.  Rutherford  et  al.,  1 
(Ala.)  R.  205  ;  Statesworth  v.  Statesworth,  Bail.  Eq.  R.  7  ;  Hallowell  et  al.  v.  Phipps  et 
5  Ala.  R.  145.  al.,  2  Whart.  R.  376;  Dickinson  v.  Lee,  4 
It  has  been  held,  however,  in  the  case  of  Wat.  R.  82;  Mowatt  v.  Carson  et  al.,  7 
Baker  et  al.  v.  Lorillard,  4  Comst.  R.  257,  Paige's  R.  328  ;  Phillips's  devisees  v.  Beale, 
that  where  there  was  a  devise  to  one  of  prop-  9  Dana's  R.  1 ;  Ingraham  v.  Meade,  3  Wal- 
erty,  to  dispose  of  the  same  among  children  lace,  Jr.  R. 
and  grandchildren,  it  might  have  been  ap- 
pointed to  some  in  exclusion  of  the  others. 


OF    SETTLEMENTS   OF    PERSONAL    PROPERTY.  349 

in  sueli  shares  as  their  father  shall  appoint,  and  in  default  of  ap- 
pointment to  them  equally,  an  appointment  of  900/.  to  A.  would 
now  be  good,  as  100/.  would  remain  to  be  equallj^  divided 
between  the  three,(A;)  of  which  B.  and  C.  would  get  each  one- 
third.  (/)  But  a  subsequent  appointment  of  the  remaining  100/. 
to  B.  would  be  void,  as  altogetlier  excluding  C,  who  is  equally 
an  object  of  the  power.(7>?)  It  is  customary,  however,  in  modern 
settlements  to  give  to  parents  a  power  of  appointment  in  favor  of 
any  one  or  more  of  the  children  exchisively  of  the  others.  And 
in  order  that  those  to  whom  appointments  have  been  made  should 
not  obtain  more  than  may  have  been  intended  for  them,  it  is 
generally  provided  that  no  child  taking  any  share  of  the  fund 
under  any  appointment  *shall  be  entitled  to  any  share  in  p^i^o^q-i 
the  part  unappointed  without  bringing  his  or  her  share 
into  hotchpot,^  and  accounting  for  the  same  accordingly.  Under 
such  a  provision,  A.,  in  the  instance  above  given,  would  not  be 
entitled  to  any  share  in  the  100/.  unappointed,  without  also  agree- 
ing to  a  like  division  of  his  900/.  amongst  himself  and  the  others. 
The  clause  of  hotchpot  operates  favorably  to  the  representatives 
of  those  children  who  may  happen  to  die  before  any  appointment 
shall  have  been  made  to  them.  For  when  a  power  is  given  to 
appoint  amongst  children,  no  appointment  can  be  made  to  the 
executors  or  administrators  of  those  who  may  have  died;(?^)  so 
that  such  executors  or  administrators  cannot  possibly  take  more 
than  the  aliquot  part  given  to  the  deceased  child  in  default  of 
any  appointment;  whilst  they  may  be  partially  or  totally  ex- 
cluded even  from  that  by  a  partial  or  complete  exercise  of  the 
power  of  appointment  in  favor  of  the  surviving  children,  or  even 
of  a  single  survivor.  When  the  appointment  is  partial  only,  the 
executors  or  administrators  of  a  deceased  child  will,  under  the 
hotclipot  clause,  divide  the  fund  unappointed  with  the  other 
children  to  whom  no  appointment  may  have  been  made,  whereas, 
without  such  a  clause,  the  children  to  whom  appointments  may 

(/,)   Young  ■!;.  Waterpark,  13  Sim.  202. 

(/)  Wilson  V.  Piggott,  2  Yes.  Jun.  351  ;  Wombwell  v.  Hanrott,  14  Beav.  143.  See  Foster 
V.  Cautley,  6  De  Gex,  M.  &  G.  55. 

{m)  2  Vea.  Jun.  355. 

(71.)  Boyle  V.  The  Bi.shop  of  Peterborouj^h,  I  Ves.  Jun.  299  ;  Ilicketls  v.  Loflus,  4  You. 
AColl.  519. 


'  Termed  in  the  civil  low,  "collation  ;''   Reed  v.  Crocker,  12  La.  An.  H.  436. 


350  OF    PERSONAL   ESTATE   GENERALLY. 

have  been  made  would  be  equally  entitled  to  participate  in  the 
part  unappointed.(o) 

When  a  power  is  given  to  appoint  property  amongst  a  par- 
ticular class,  no  portion  of  the  fund  can  be  appointed  in  favor  of 
any  person  who  is  not  a  member  of  that  class;  and  any  appoint- 
ment to  such  person  will  accordingly  be  void.^  Thus,  if  the 
power  be  to  appoint  the  property  to  all  or  any  of  the  children  of 
the  appointor  *in  such  manner  as  he  may  think  fit,  no 
L  ^  ^  interest  in  the  property  can  be  appointed  to  any  grand- 
child of  the  appointor;  "for  a  grandchild  is  not  an  object  of  the 
power.(p)  So  if  the  power  be  to  appoint  amongst  nephews 
or  grandnephews,  those  only  can  take  any  shares  who  answer 
that  description. (ry)  Again,  if  the  power  be  to  appoint  portions 
amongst  younger  children,  nothing  can  be  taken  by  a  younger 
son  who  afterwards  becomes  the  eldest  by  the  decease  of  his 
elder  brother ;(r)  although  if  he  should  have  actually  received 
any  share  in  the  money  whilst  a  younger  son,  he  will  not  be 
obliged  to  refund  it  on  becoming  the  eldest.(.5)  The  word 
"younger,"  however,  is  not,  in  parental  provisions,(<)  taken 
hterally,  but  as  meaning  any  child  who  may  not  be  entitled 
to  the  family  estate.  Therefore  a  daughter,  who  may  be  the 
eldest  child,  would  be  considered  as  a  proper  object  of  a  power 
to  appoint  amongst  the  younger  children,  whilst  her  younger 
brother,  being  the  eldest  son  entitled  to  the  family  estate,  would 
not  be  allowed  to  participate, (?()  And  in  the  same  manner  a 
second  son  becoming  the  eldest,  but  not  obtaining  the  family 
estate,  would  be  allowed  a  share.(v)    A  power  to  appoint  amongst 

(o)  Wilson  c.Piggott,  2  Ves.  Jun.  351;  Wombwell  r.  Hanrott,  14  Beav.  U3  ;  Walmsley 
V.  Vaughan,  1  De  Gex  &  Jones,  114. 

(p)   Alexander  v.  Alexander,  2  Yes.  Sen.  640  ;  Bristow  v.  Warde,  2  Ves.  Jun.  336. 

{q)   Falkner  v.  Butler,  Amb.  514;   Waring  v.  Lee,  8  Beav.  247. 

{r)  Chadwick  v.  Doleman,  Vern.  528  ;  Lord  Teynbam  v.  Webb,  2  Ves.  Sen.  198  ;  Gray  v. 
Earl  of  Limerick,  2  De  Gex  &  Smale,  370.     See  Sandeman  v.  Mackenzie,  1  John.  &  H.  613. 

(4)  2  Sugd.  Pow.  293  ;   680,  8th  ed. 

(<)   Hall  V.  Hewer,  Amb.  203  ;  Lyddon  v.  Ellison,  19  Beav.  565. 

(7/)  Pierson  v.  Garnet,  2  Bro.  C.  C.  38  ;  Ueneage  v.  Hunloke,  2  Atk.  456  :  Beale  v.  Beale, 
1  P.  Wms   244. 

(v)   Spencer  v.  Spencer,  8  Sim.  87  ;  Maconbrey  v.  Jones,  2  Kay  &  J.  684. 

1  See  ante,  p.  247,  note. 


OF    SETTLEMENTS   OF    PERSONAL    PROPERTY.  351 

cliildren  living  at  their  father's  decease  includes  a  child  en  ventre 
sa  mere.[w) 

In  some  cases  where  the  power  only  authorizes  an  appoint- 
ment amongst  children,  an  appointment  in  favor  *of  the  r^^cyr^-i 
issue  of  a  child  may  be  sustained  as  being,  in  eft'ect, 
first  an  appointment  to  the  child,  and  then  an  assignment  by 
such  child  in  favor  of  his  issue.(a:)  But  this  of  course  can  only 
be  done  when  the  child  is  of  age,  and  is  a  party  to  and  executes 
the  deed  by  which  the  appointment  is  made.  And  the  more 
regular  plan  in  such  cases  is,  for  the  father  first  to  make  the 
appointment  in  favor  of  the  child,  and  then  for  the  child  to 
make  an  assignment  of  the  fund  appointed  to  trustees  in  trust 
for  his  children  in  the  manner  intended. 

An  appointment  by  a  father  in  favor  of  his  child,  in  exercise  of 
a  power  for  that  purpose,  ought  to  be  made  for  the  benefit  of  the 
child  who  is  the  object  of  the  provision,  and  not  indirectly  for  the 
benefit  of  the  father  who  makes  the  appointment.^  Accordingly, 
any  bargain  between  the  father  and  the  child  by  which  the  former 
is  to  receive  any  advantage  for  exercising  his  power  will  be  con- 
sidered as,  in  technical  phrase,  a  fraud  on  the  power,  and  will 
render  the  appointment  void.(^)  But  when  there  is  no  evidence 
that  the  appointment  is  made  under  a  bargain  for  the  benefit  of 
the  father,  although  there  may  be  strong  suspicion  that  such  is  the 
case,  the  appointment  cannot  be  set  aside. (z)  Powers  of  appoint- 
ment amongst  children  usually  enable  the  parent  to  fix  the  age 
or  time  at  which  the  fund  appointed  shall  vest  in  any  child. 
But,  on  the  principle  just  stated,  a  father  will  not  be  allowed  to 

{w)  Beale  v.  Beale,  1  P.  Wms.  244. 

(x)  Routledge  v.  Dorril,  2  Ves.  Jun.  357  ;  West  v.  Berney,  1  Russ.  &  My.  4.31,  439  ;  Gokl- 
smid  V.  Goldsmid,  2  Hare,  187. 

(?/)  Daubeney  v.  Cockburne,  1  Meriv.  626  ;  Palmer  v.  Wheeler,  2  Ball  &  Beatty,  18  ; 
Jackson  v.  Jackson,  1  Dru.  9]  ;  Thompson  v.  Simpson,  2  Jones  &  Lat.  110. 

(z)  iMcQueen  v.  Faiquhar,  1 1  Ves.  467  ;  Hamilton  v.  Kirwan,  2  Jones  k  Lat.  393  ;  Camp- 
bell V.  Home,  1  You.  k  Coll.  N.  C.  664. 


'    Bostick  V.   Winton,  1  Sneed's    R.   524,  pointer,    and    to    become    security   for    the 

may  be  referred  to  in  illustration  of  the  doc-  father's  debts  ;  with   the  understanding  that 

trine  stated  in  the  text  ;  in  which  case  it  was  the  land  was  to  be  reconveyed  ;  was  not  such 

decided,  that  a  conveyance  made  to  a  child,  an   appointment  in  good  faith,  as  would  de- 

in  order  that  he  might  have  sufficient  prop-  feat  the  remainder.*, 
erty  to  become  bail  for  the   father,  the   ap- 


352  OF    PERSONAL   ESTATE    GENERALLY. 

make  an  immediate  appointment  to  an  infant  child,  for  the  sake 
of  becoming  himself  entitled  to  the  fund  a[)pointed,  as  the  child's 
r*ocoT  personal  representative  *in  the  event  of  its  decease.(a) 
'-*'*'-'  An  appointment  to  an  infant  is  not,  however,  necessarily 
void  on  account  of  the  circumstance  that  the  father,  who  has 
made  the  appointment,  will  become  entitled  to  the  property 
appointed  in  the  event  of  the  child's  decease, (^) 

In  the  exercise  of  powers  of  appointment  amongst  childrenj 
care  should  be  taken  not  to  postpone  the  vesting  of  their  shares 
to  a  period  wdiicli  may  exceed  the  limits  allowed  by  the  law  of 
perpetuity.(c)  When  the  power  of  appointment  is  a  general 
power,  enabling  the  appointor  to  make  a  disposition  in  favor  of 
any  object  he  may  please,  the  property  is  evidentlj^  not  tied  up 
so  long  as  such  a  power  exists  over  it;  and  neither  the  reason 
nor  the  rule  which  forbids  a  perpetuity  has  any  application  till 
some  settlement  is  made  in  exercise  of  such  a  pow'er.  In  such  a 
case,  therefore,  the  limits  of  perpetuity  commence  from  the  time 
of  the  appointment.(<:Z)  But  where  the  power  of  appointment  is 
to  be  exercised  only  in  favor  of  a  particular  class  of  objects,  the 
property  subject  to  the  power  is  evidently  already  tied  up  in 
favor  of  that  class.  The  limits  of  perpetuity  are  therefore  in 
this  case  to  be  reckoned,  not  from  the  time  of  the  exercise  of  the 
power,  but  from  the  date  of  its  creation.  The  interests  given  by 
the  power  must,  for  this  purpose,  be  regarded  as  if  they  had 
been  inserted  in  the  settlement  by  which  the  power  was  created; 
and  if  such  interests  would  have  been  too  remote,  if  inserted  in 
the  original  settlement,  they  will  be  too  remote  when  given  in 
exercise  of  the  power. (e)  Thus  a  person  having  a  general  power 
i-^  -.  of  appointment  by  will  over  a  fund,  may  *by  his  will  ap- 
^  "  '  -^  point  a  share  of  it  in  favor  of  any  unborn  cliiki  of  his 
own,  to  be  vested  in  such  child  on  his  attaining  the  age  of 
twenty-three  years.     The  limit  of  perpetuities  is  reckoned  from 

((?)  Cunynghame  v.  Thurlow,  1  Russ.  &  M.  436;  Lord  Sandwich's  Case,  cited  11  Ves. 
479;  Gee  v.  Gurney,  2  Coll.  486. 

(b)  Butcher  v.  .Jackson,  14  Sim.  444  ;  Fearon  v.  Desbrisay,  14  Beav.  635. 

(c)  See  ante,  p.  245. 

(d)  1  Sugd.  Pow.  249,  495  ;  395,  8th  ed. 

(e)  Co.  Litt.  271  b,  n.  (1),  vii,  2  ;  1  Sugd.  Pow.  498  ;  39fi,  8th  ed.  :  Routledge  v.  Dorril, 
2  Ves.  Jun.  357. 


OF    SETTLEMENTS    OF    PERSONAL    PROPERTY.  353 

the  time  of  the  appointment,  which  in  this  case  is  the  death  of 
the  appoiuter,  when  his  will  begins  to  take  effect.  The  child 
must  necessarily  then  be  born,  or  in  ventre  sa  mere,  and  the 
child's  life  is  accordingly  the  life  then  in  being  within  which  the 
share  must  necessarily  vest.  But  if  by  a  marriage  settlement  a 
fund  be  settled  in  trust  for  the  fiither  for  his  life,  and  after 
his  decease  in  trust  for  the  children,  in  such  shares  as  he  shall 
appoint  by  his  will,  he  cannot  make  an  appointment  in  favor 
of  any  unborn  child,  to  be  vested  on  his  attaining  the  age  of 
twenty-three  years.  For  in  this  case  the  limit  of  perpetuities 
counts  from  the  date  of  the  settlement,  when  the  property  was 
first  tied  up  for  the  benefit  of  the  children;  and  this  limit  would 
be  exceeded  if  the  child  should  not  attain  the  given  age  within 
twenty-one  years  after  the  decease  of  the  father,  who  was  the  life 
in  beins:  at  the  date  of  the  settlement.  And  the  rule  is,  that 
every  limitation  which  may  exceed  in  duration  a  life  or  lives  in 
being,  and  twenty-one  years  afterwards  (allowing  for  the  period 
of  actual  gestation),  is  void  as  tending  to  a  perpetuity.(/) 

When  personal  property  is  directed  to  be  paid  to  any  persons 
at  a  future  time,  the  leaning  of  the  courts  is  always  in  favor  of 
vested  interests ;  that  is  to  say,  the  courts  lean  to  that  construc- 
tion which  will  give  to  the  parties  a  present  assignable  and  trans- 
missible right  to  that  which  is  not  payable  till  a  future  time.* 

(/)  See  Principles  of  the  Law  of  Real  Property,  242,  Tst  ed.  ;  251,  2d  ed  ;  259,  3d  ed.; 
273,  5th  ed. ;  287,  6th  ed. 

1  The  fundamental  rule,  that  the  intention  vesting   of  legacies  ;  Johnson  v.  Valentine,  4 

of  the  testator  is  to  govern  the  construction  Sandf.  Super.  C.   R.  36  ;   Reed  v.  Buckley,  5 

of  a   will,    is   the   primary   test    to    discover  Wat.  &  Serg.  R.  517  ;  Roberts's  Exrs.  f.  Brin- 

whether  a  legacy  is   vested    or  contingent  ;  ker,  4  Dana's  R.  572  ;  Cowdin  v.  Perry  et  al., 

Chighizola  v.  Le  Baron,  Exr.,  21  Ala.  R.  406  ;  Exrs.,  11  Pick.  R.  503  ;  The  State  v.  Mann,  3 

Marr,    Exr.,  v.  McCulloch,   Admr.,   6  Port.  Har.  &  Johns.  R.  338 ;  Eldridge  w.  Eldridge, 

(Ala.)  R.  607  ;  Stone etal.,  Admrs.,  u.  Massy,  9  Gush.  R.    516;   Manderson  v.  Lukens,   23 

2  Yeates  R.  363  ;  Scott,  Exr.,  v.  Price,  Exr.,  2  Pa.  St.  R.  31  ;  Chew's  Ap.,  Z'^A.  23  ;  Young 

Serg.  &  Raw.  R.  59  ;  Lemonier  v.  Godfroid,  6  v.    Stoner,  Id.    105  ;    Devane    v.   Larkins,   3 

Har.  &  Johns.  R.  474.     It  is  often,  however,  Jones's  Eq.  R.  377.     Thus,  words  of  survivor- 

a  matter  of  great  difficulty,  to  decide  whether,  ship  are  always  to  be  referred  to  the  period  of 

from  the  intention  of  the  testator,  it  was  de-  the  testator's  death,  unless  there   is  a  plain 

signed  that  a  legacy  should  be  vested  or  con-  intent  to  the  contrary  ;  Moore  v.  Lyons,  25 

tingent ;  Shalluck,  Admr.,  v.  Stedman  etal.,  Wend.  R.  119  ;   Ilulburt  v.  Ericson  et  al.,  16^ 

Exrs.,  2  Pick.  R.  408.  Ma.ss.  R.  241;    Drayton   v.  Drayton  et  al.,  1 

/-       The  legal  construction  of  wills  favors  the  Dessauss.  R.  325  ;   Elliott  v.  Exrs.  of  Smith, 


354 


OF   PERSONAL   ESTATE   GENERALLY. 


Thus  if  a  legacy  be  given  to  a  person  to  be  payable  when  be  at- 
tains the  age  of  twenty-one  years,  the  legacy  is  considered  to  be 
immediately  vested,  and  will  accordingly  be  payable  to  the  ad- 
ministrator of  the  lesratee  in  case  he  should  die  *uuder 


[*254] 


age.{(/)     So  if  personal  estate  be  settled  in  trust  for  A-.  for 


life,  and  after  his  decease  for  all  his  children  in  equal  shares,  each 
of  his  children  will  be  entitled  to  a  share,  whether  such  child 
survive  his  parent  or  not,  and  although  such  child  should  die  in 
iufancy.(/()  If,  however,  the  property  should  consist  of  mone}* 
charged  on  land  or  other  real  estate,  such  as  the  portions  of 


(g)   2  Black.  Coram.  513;  Co.  Lift.  2.37  a,  note  (1). 

(k)   Skey  V.  Barnes,  3  Mer.  335;  Templeton  v.  Warrington,  13   Sim.  267. 
V.  Binns,  1  Kiiy  &  John.  417. 


See  Swallow 


lb.;  Sealy  v.  Laurens,  lb.;  Fulton  v.  Fulton, 
2  Grant's  Gas.  28;  Doniinick  v.  Moore,  2 
Bradf.  11.  201. 

Where  time  is  annexed  to  the  payment 
only,  and  not  to  the  gift  itself,  the  legacy  is 
vested  ;  Chighizola  v.  Le  Baron,  Exr.,  21 
Ala.  R.  406  ;  Seibert's  Appeal,  13  Pa.  St.  II. 
501  ;  Moore  v.  Smith,  9  Wat.  R.  403  ;  Lamb 
V.  Lamb,  8  Id.  184  ;  Bayard  v.  Atkins,  10  Pa. 
St.  R.  17  ;  Schriver  v.  Cobeau,  4  Wat.  R. 
130  ;  Patterson,  surviving  Exr.,  v.  Haw- 
thorne, Admr.,  12  Serg.  &  Raw.  R.  112;  Ma- 
gofiBn,  Admr.,  v.  Patton  et  al.,  Exrs.,  4  Raw. 
R.  113  ;  Jack^pn's  Admr.  v.  Subett,  10  B. 
Hon.  R.  572;  Furness,  Exr.,  v.  Fox,  1  Gush. 
R.  134  ;  Ware  v.  Cook,  1  Halst.  Gh.  R.  193  ; 
Marr,  Exr.,  v.  McCuUough,  Admr.,  6  Port. 
R.  507;  Patterson  v.  Ellis,  11  Wend.  R.  269  ; 
Donner-s  Appeal,  2  Watt.  &  Serg.  R.  372; 
Roberts's  Exrs.  v.  Brinker,  4  Dana's  R.  572  ; 
Gregg  et  al.  v.  Bethea,  6  Port.  (Ala.)  R.  9; 
Goddard  v.  Johnson,  Exr.,  14  Pick.  R.  352  ; 
Lemonier  v.  Godfroid,  6  Har.  &  Johns.  R. 
474  ;  Boone  v.  Sinkler,  1  Bay's  R.  369  ;  Qar- 
penter  v.  Heard,  14  Pick.  R.  449  ;  Gifford  v. 
Thorn,  1  StocM.  R.  702  ;  Bowman's  Ap.,  34 
Pa.  St.  R.  19;  Bund's  Exr.  v.  Burd's  Admr., 
40  Pa.  St.  R. -182  ;  Roome  v.  Phillips,  24  N. 
Y.  R.  463 ;  and  in  like  manner,  when  the  di- 
vision, merely,  of  the  property,  is  postponed 
to  a  future  time,  and  not  its  distribution, 
the  legacy  is  considered  vested  ;  Spruill  i\ 
Moore,  5  Ired.  Eq.  R.  287  ;  Womack  v. 
Greenwood,  6  Geo.  R.  299  ;  Smith  v.  Wise- 
man, 6  Ired.  Eq.  R.  540  ;   McLemore  v.  Mc- 


Lemore,  8  Ala.  R.  687;  Christian  v.  Chris- 
tian, 3  Port.  (Ala.)  R.  351  ;  Etheridge,  Admr., 
V.  Bell,  5  Ired.  L.  R.  87  ;  Candler  v.  Dinkle, 
4  Wat.  R.  143  ;  Fanty  v.  Kline,  Penning.  R. 
551. 

If  something  out  of  the  principal  is  to  be 
immediately  paid  to  the  legatee,  or  appropri- 
ated in  his  favor,  the  legacy  will  be  vested  ; 
as  the  giving  of  interest  on  the  principal  sum 
until  the  time  of  payment  arrives  ;  Schriver 
V.  Cobeau,  4  Wat.  R.  130  ;  Heleman  v.  Hele- 
man  et  al. ,  4  Raw.  R.  440  ;  King  v.  King,  1 
Wat.  &  Serg.  R.  205  ;  Marr,  Exr.,  v.  McCul- 
lough,  Admr.,  6  Port.  R.  507  ;  Patterson  v. 
Ellis,  11  Wend.  R.  269  ;  Hopkins  v.  Jones,  2 
Pa.  St.  R.  69;  Kelso  v.  Dickey,  7  Wat.  & 
Serg.  R.  279  ;  Lemonier  v.  Godfroid,  6  Har. 
&  Johns.  R.  474  ;  Boone  v.  Sinkler,  Exr.,  1 
Bay's  R.  369;  Cassilly  et  al.  v.  Meyer  et  al., 
4  Md.  R.  1. 

When  there  is  a  gift  to  a  class  of  persons,  to 
take  effect  in  enjoyment  at  a  future  period, 
the  property  vests  in  the  persons  as  they 
come  171  esse,  subject  to  be  opened  and  let  in 
others,  as  they  may  be  born  afterwards  ; 
Johnson  v.  Valentine,  4  Sandf.  Super.  C.  R. 
36;  Barnes  et  al.  v.  Prevost  et  al.,  4  Johns. 
R.  61  ;  and  see,  also,  Hall  v.  Eddy,  2  Green's 
R.  169  ;  Wardi;.  Saunders,  3  Sneed's  R.  387  ; 
Yeaton  v.  Roberts,  8  Foster's  R.  459  ;  Cooper 
V.  Hepburn,  15  Gratt.  R.  551  ;  Nichols  v. 
Denny,  37  Missi.  R.  59  ;  Tucker  v.  Bishop,  16 
N.  Y.  R.  402  ;  Hocker  v.  Gentry,  3  Met. 
(Ky.)  R.  463. 


OF   SETTLEMENTS   OF   PERSONAL   PROPERTY.  355 

younger  children  when  the  family  estate  is  entailed  on  the  eldest 
son,  the  rule  is  different ;  and  if  any  of  the  children  should  die 
before  the  time  when  his  or  her  portion  becomes  payable,  it  will, 
in  the  absence  of  special  provision  to  the  contrary,  sink  into  the 
land  for  the  benefit  of  the  estate. («) 

In  the  settlement  of  personal  property  upon  children  there  are 
two  plans,  either  of  which  may  be  adopted  with  respect  to  the 
vesting  of  the  interests  given.  The  one  plan  is,  to  vest  the  in- 
terest of  the  children  in  them  immediately  as  they  come  into 
being,  divesting  from  each  of  them  proportionate  shares  as  others 
are  born,  and  also  divesting  the  shares  altogether  in  favor  of  the 
others,  in  the  event  of  the  decease  of  any  son  under  age,  or  of 
any  daughter  under  age  and  without  having  been  married.  The 
other  plan  is,  to  vest  the  interest  given  only  in  those  who,  being 
sons,  attain  the  age  of  twenty-one  years,  or,  being  daughters, 
attain  that  age  or  marry  under  it.  So  far  as  the  corpus  of  the 
fund  is  concerned,  the  result  of  each  of  these  plans  is  the  same, 
the  property  being  ultimately  divided  only  amongst  those  chil- 
dren who,  being  sons,  live  to  come  of  age,  or,  being  daughters, 
come  of  age  or  previously  marry.  But  with  regard  to  the  in- 
come of  the  fund  the  plans  are  different.  In  the  *first  r^occn 
case,  the  income  belongs  to  the  children  whilst  under  age;  *-  -' 
but  in  the  second  no  interest  either  in  the  income  or  in  the  prin- 
cipal is  given  during  minority,  or,  in  the  case  of  daughters,  until 
marriage  under  age.  In  the  first  case,  therefore,  if  the  father  be 
dead,  the  income  will  be  payable  to  the  guardian  of  the  children 
toward  their  maintenance  and  education  ;  but  in  the  second  case 
there  will  be  no  provision  for  these  purposes  in  the  absence  of 
express  directions.  Such  directions  therefore  should  in  such 
case  be  always  inserted,  with  a  provision  for  the  accumulation 
of  the  surplus  income  by  way  of  increase  of  the  principal.  If 
however  the  whole  property  is  ultimately  to  go  amongst  the 
children, (/t)  or  if  the  persons  entitled,  in  the  event  of  the  children 
not  living  to  attain  vested  interests,  should  agree,(^)  the  Court  of 
Chancery  will  direct  the  income  to  be  applied  for  the  children's 
maintenance,  in  the  absence  of  sufficient  provision  for  that  pur- 

(t)  Co.  Litt.  237  a,  n.  (1).     See  Evans  v.  Scott,  1  H.  of  L.  Cases,  4.3,  57. 
{k)   Haley  v.  Bannister,  4  Mad.  275  ;  Errat  v.  Barlow,  14  Ves.  202. 
(/)  Turner  v.  Turner,  4  Sim.  4.30  ;  Cannings  v.  Flower,  7  Sim.  523. 


356  OF  PERSONAL  ESTATE  GENERALLY. 

pose,  and  even  in  tlie  face  of  an  exjiress  direction  to  accumulate 
the  income. (??))  And  a  recent  act  of  Parliament  now  pro\ddes 
that,  in  all  cases  where  any  property  is  held  by  trustees  in  trust 
for  an  infant,  either  absolutely  or  contingently  on  his  attaining 
the  age  of  twenty-one  years,  or  on  the  occurrence,  of  any  event 
previously  to  his  attaining  that  age,  it  shall  be  lawful  for  such 
trustees,  at  their  sole  discretion,  to  pay  to  the  guardians  (if  any) 
of  such  infant,  or  otherwise  to  apply  for  or  towards  the  mainten- 
ance or  edu.cation  of  such  infant,  the  whole  or  any  part  of  the 
income  to  which  such  infant  7nay  be  entitled  in  respect  of  such  prop- 
erty, whether  there  be  any  other  fund  applicable  to  the  same 
purpose,  or  any  other  person  bound  by  law  to  provide  for  such 
r*9cL«i  i^^iJitenance  or  ^education,  or  not;  and  such  trustees  shall 
■^  accumulate  all  the  residue  of  such  income  by  way  of  com- 
pound interest,  by  investing  the  same  and  the  resulting  income 
thereof  from  time  to  time  in  proper  securities,  for  the  benefit  of 
the  person  who  shall  ultimately  become  entitled  to  the  property 
from  which  such  accumulations  shall  have  arisen  :  provided  always, 
that  it  shall  be  lawful  for  such  trustees  at  any  time,  if  it  shall  ap- 
pear to  them  expedient,  to  apply  the  whole  or  any  part  of  such 
accumulations  as  if  the  same  were  part  of  the  income  arising  in 
the  then  current  year.(??)  This  enactment  applies  only  to  deeds  ex- 
ecuted, and  wills  executed  or  confirmed  or  revived  by  codicil  exe- 
cuted after  the  passing  of  the  act,  which  took  place  on  the  28th 
of  August,  1860. (o)  The  act,  it  will  be  observed,  applies  only  to 
income  to  which  the  infant  may  be  entitled;  so  that  if  the  infant 
should  not  be  entitled  to  the  income  irrespectively  of  the  act,  it 
would  scarcely  be  safe  for  the  trustees  to  apply  it  for  the  infant's 
maintenance  without  express  authority. 

In  marriage  settlements  a  life  interest  is  usually  and  prop- 
erly given  to  the  father  and  mother,  so  that  no  provision  is 
required  for  the  maintenance  of  the  children  until  after  the  de- 
cease of  the  survivor.  And  where  life  interests  are  not  given  to 
the  parents,  but  provision  is  made  for  the  maintenance  of  the 
children  during  the  father's  lifetime  out  of  the  settled  fund,  such 
provision  is  considered  as  primarily  applicable  for  the  mainten- 

(w)  Greenwell  v.  Greenwell,  5  Ves.  194.  (o)   Sect.  34. 

(«)  Stat.  23  k  24  Vict.  c.  145,  s.  26. 


OF    SETTLEMENTS   OF    PERSONAL    PROPERTY. 


357 


auce  of  the  children  accordiiigl3^(p)  But  the  general  rule  is, 
that  every  father  is  bound  to  maintain  his  children,  if  of  ability 
so  to  do  •,{q)  and  a  provision  contained  in  a  gift  *to  an  in-  p^^K,,-, 
fant  child,  for  his  maintenance  and  education,  will  not  be  ^  "' 
applied  for  that  purpose  during  his  father's  lifetime,  if  the  father 
is  able  to  maintain  him  in  a  manner  suitable  to  his  condition  and 
prospeets.(r)^     When,  therefore,  it  is  intended  that  the  income  of 

(p)  Stocken  v.  Stocken,  4  Sim.  152;  Meaeber  v.  Younge,  2  Myl.  &  K.  490.  See  Thomp- 
son V.  Griffin,  1  Craig  &  Phillips,  317. 

(q)   Andrews  v.  Partington,  .3  Bro.  C.  C.  60. 

(r)  Maberley  v.  Turton,  14Ves.  499  ;  Jervoise  v.  Silk,  G.  Cooper,  52;  Ex  parte  Williams, 
2  Collyer,  740. 


1  A  father  will  not  be  allowed  for  the  main- 
tenance and  education  of  his  children,  out  of 
their  fortunes,  if  he  is  of  ability  to  support 
them;  In  the  matter  of  Kane  et  al.,  2  Barb. 
Oh.  R.  375  ;  Walker  et  al.  v.  Prowder  et  al., 
2  Ired.  Eq  R.  478  ;  Whilden  et  al.  v.  Whil- 
den,«:sr.,  et  al.,  Riley's  Ch.  Gas.  205;  Addi- 
son V.  Bowie,  2  Bland's  Ch.  R.  606  ;  In  the 
matter  of  Bostwick,  4  Johns.  Ch.  R.  100; 
Jones  V.  Stockett,  2  Blands  Ch.  R.  431  ; 
Cruger  v.  Eaywood,  2  Dessauss.  R.  94 ;  In 
the  matter  of  Harland's  Accounts,  5  Raw.  R. 
323  ;  Dawes  v.  Howard  et  al.,  4  Mass.  R.  97; 
Guion  V.  Guion's  Admr.,  16  Mo.  R.  52; 
Sparhawk  et  al.  v.  Admr.  of  Buell  et  al. ,  9 
Vt.  R.  70  ;  Presley  v.  Davis,  7  Rich.  Eq.  R. 
105 ;  Barring  v.  Coles,  2  Bradf.  R.  349 ; 
•Hines  v.  Mullins,  25  Geo.  R.  696  ;  and  this  is 
true  also,  where  the  child,  by  the  father's 
consent,  is  in  the  custody  of  the  mother,  who 
has  been  guilty  of  misconduct;  Gill  v.  Read, 
5  R.  I.  R.  343  ;  but  the  father's  situation  in 
life,  the  future  prospects  of  the  children,  the 
extent  of  their  fortune,  and  all  other  circum- 
stances, must  be  taken  into  consideration  in 
determining  the  ability  of  the  father;  In  the 
matter  of  Kane  et  al.,  2  Barb.  Ch.  R.  375  ; 
Walker  et  al.  v.  Crowder  et  al.,  2  Ired.  Eq. 
R.  478  ;  Ellerbe  v.  The  Heir,«,  Ac,  of  Ellerbe, 
1  Speer's  Eq.  R.  328  ;  Brown  v.  Deloach,  28 
Geo.  R.  486 ;  Alston  v.  Alston,  34  Ala.  R.  15. 
The  case  is,  of  course,  different  where  the 
father  is  not  of  ability;  Myers  v.  Myers,  2 
McCord's  Ch.  R.  255  ;  Dawes  v.  Howard  et 
al.,  4  Mass.  R.  97  ;  Newport  et  al.  v.  Cook  et 
al.,  2  Ash.  R.  332;  and  where,  on  that  ac- 
count,  sums  from  the  child's   income   have 


been  paid  over  to  the  father,  by  the  trustee  of 
the  child,  in  the  due  exercise  of  his  discretion, 
for  the  support  of  the  child,  it  has  been  held, 
that  no  promise  of  repayment  can  be  implied, 
on  account  of  a  subsequent  change  for  the  bet- 
ter, in  the  circumstances  of  the  father  ;  Pearce 
V.  Olney,  6  R.  I.  R.  269 ;  and  it  seems,  that  a 
mother  will  be  allowed  for  the  support  of  her 
children,  out  of  their  estates,  notwithstanding 
she  may  be  of  ability  lo  maintain  them ; 
Wilkes  V.  Rogers  et  al.,  6  Johns.  R.  566; 
Whipple  V.  Dow,  2  Mass.  R.  415;  Dawes  v. 
Howard  et  al.,  4  Id.  97;  Guion  v.  Guion's 
Admr.,  16  Mo.  R.  52  ;  Osborne  41.  Van  Horn 
et  al.,  2  Florida  R.  360.  But  where  a  mother 
has  maintained  a  child,  she  will  not  be  al- 
lowed to  recover  what  she  has  expended,  upon 
an  implied  promise  of  the  child  to  refund,  for 
the  law  will  presume  that  she  has  furni.shed 
her  means  gratuitously  ;  Cummings  v.  Cum- 
mings,  8  Wat.  R.  366  ;  and  the  same  is  true 
of  a  stepfather;  Brown  v.  Sockwell,  26  Geo. 
R.  380;  Gillett  v.  Camp,  27  Mo.  R.  541; 
Brush  V.  Blanchard,  18  111.  R.  46. 

In  all  cases,  however,  the  court  will  consult 
the  permanent  interests  of  the  children  ;  In 
the  matter  of  Burke,  4  Sand.  Ch.  R.  617; 
and  will  make  exceptions  to  ordinary  rules  of 
law  in  their  favor,  as  has  been  done  by  allow- 
ing interest  upon  legacies  left  to  children, 
from  the  time  of  the  death  of  the  testator, 
where  there  was  no  other  means  of  support ; 
Sullivan  i\  Winthrop  et  al.,  1  Sumn.  11.  1  ; 
Miles  V.  Wister,  5  Bin.  R.  479  ;  Lupton  et  al. 
V.  Lupton  et  al.,  2  Johns.  Ch.  R.  614 ;  Leiby's 
Ap  ,  49  Pa.  St.  R.  182. 


358  OF    PERSONAL   ESTATE   GENERALLY. 

property  g'iven  to  children  should  be  applied  to  their  maintenance 
during  their  father's  lifetime,  Avithout  reference  to  his  ability 
to  maintain  them,  the  application  of  the  income,  without  refer- 
ence to  his  ability,  should  be  expressly  directed;  and,  if  such 
application  be  so  directed,  the  income  must  of  course  be  applied 
accordingly.(.s)  When  two  funds  are  provided  for  the  mainten- 
ance of  an  infant,  it  is  frequently  difficult  to  decide  to  which 
fund  recourse  should  be  first  had.^  The  general  rule  is,  that  the 
interest  of  the  infant  determines  the  order  of  application  ;(^)  but, 
in  order  to  avoid  questions,  it  is  very  desirable,  when  two  funds 
are  provided  for  an  infant's  maintenance,  to  direct  that  one  of 
them  shall  be  in  aid  only  of  the  provision  atforded  by  the  other. 
But  the  act  to  which  we  have  just  referred  gives,  as  we  have 
seen,(?<)  a  discretion  to  the  trustees  to  apply  the  income  of  the 
infant's  property  for  his  maintenance,  whether  there  be  any  other 
fund  applicable  to  the  same  purpose,  or  any  other  person  bound 
by  law  to  provide  for  such  maintenance  or  education,  or  not. 

In  settlements  of  personal  property,  it  has  long  been  usual  to 
provide  for  the  investment  of  the  fund  settled  in  the  Parliament- 
ary stocks  or  public  funds  of  Great  Britain,  or  at  interest  upon 
government  or  real  securities  in  England  or  Wales,  but  not  in 
Ireland ;  and  at  *the  present  day  investments  in  railway 
^  "  -'  debentures,  preference  shares,  and  other  securities,  yield- 
ing a  larger  income,  are  often  authorized.  Government  securi- 
ties, as  distinguished  from  stocks  or  funds,  seem  to  be  nothing 
else  than  exchequer  bills,  in  which  trustees  appear  to  be  justified, 
even  without  express  authority,  in  investing  the  property  for  any- 
temporary  purpose,  as  during  the  necessary  delay  in  completing 
a  contemplated  mortgage  security.(.r)  But  where  a  permanent 
investment  is  intended,  a  trust  to  lay  out  money  in  government 
securities  will  not  authorize  the  purchase  of  exchequer  bills.(?/) 

{s)   See  Wetherell  v.  Wilson,  1  Keen,  80  ;  White  v.  Grane,  18  Beav.  571. 
(f)  Foljambe  v.  "Willoughby,  2  Sim.  &  Stu.  165  ;   Lygon  v.  Lord  Coventry,  14  Sim.  41. 
(u)  A7ite,  p.  255. 

(x)   Matthews  u.  Brise,  6  Beav.  239,  244. 

(y)  Ex  parte  Chaplin,  8  You.  &  Coll.  397;  as  to  the  issue  of  E.xehequer  Bills,  see  stat.  24 
Vict.  c.  5. 

1  Where  a  fund  ha?  been  appropriated  to  further  allowance  will  be  made  by  the  court ; 
the  maintenance  and  education  of  children,  In  the  matter  of  Davison-  et  al.,  5  Paige's  Ch. 
it   must   be  completely    exhau.sted    before    a    R.  136. 


OF    SETTLEMENTS   OF    PERSONAL    PROPERTY.  359 

Real  security  means  the  mortgage  of  real  estate,  namely,  freehold 
or  copyhold  hereditaments  of  sufficient  value. (<:)  And  if  it  be 
desired  that  the  trustees  should  have  power  to  invest  the  trust 
money  on  mortgage  of  leasehold  estates,  or  in  railway  deben- 
tures,(a)  or  shares,  or  any  other  securities,  or  to  lend  it  to  any 
party  on  his  bond,  express  authority  ought  to  be  given  to  the 
trustees  for  the  purpose.  Investments  in  Ireland  were  often  ex- 
pressly prohibited,  on  account  of  an  act  of  Parliament,  wdiich 
empowered  trustees,  who  were  authorized  by  their  trust  to  lend 
money  at  interest  on  real  securities  in  England,  Wales,  or  Great 
Britain,  to  lend  the  same  at  interest  on  real  securities  in  Ireland. (6) 
But  all  loans  of  money  on  real  securities  in  Ireland  under  the  act, 
in  which  any  minor  or  unborn  child,  or  person  of  unsound  mind 
might  be  *interested,  were  required  to  be  made  by  the  |->^9rQ-| 
direction  and  under  the  authority  of  the  Court  of  Chan- 
cery in  England,  to  be  obtained  in  any  cause  or  upon  petition  in 
a  summary  way  ;(c)  and  every  such  loan  was  to  be  made  with  the 
consent  of  the  person  or  persons,  if  any,  whose  consent  might  be 
required  as  to  the  investment  of  such  money  upon  real  securities 
in  England,  Wales,  or  Great  Britain,  testified  in  the  manner  re- 
quired by  the  trust.(tZ)  And  it  was  also  provided  that  the  act 
should  not  apply  to  cases  where  there  was  an  express  restriction 
against  the  investment  of  the  trust  money  on  securities  in  Ire- 
land.(e)  But  a  recent  statute  now  provides,  that  when  a  trustee, 
executor,  or  administrator,  shall  not,  by  some  instruments  creating 
his  trust,  be  expressly  forbidden  to  invest  any  trust  fund  on  real 
securities  in  any  part  of  the  United  Kingdom,  or  on  the  stock  of 
the  Bank  of  England  or  Ireland,  or  on  East  India  stock,  it  shall 
be  lawful  for  such  trustee,  executor,  or  administrator,  to  invest 
such  trust  fund  on  such  securities  or  stock;  and  he  shall  not  be 
liable  on  that  account  as  for  a  breach  of  trust,  provided  that  such 

(2)  See  Stickney  v.  Sewell,  1  My.  &  Cr.  8;  Pbillipson  v  Gatty,  7  Hare,  516;  Marit  v. 
Leith,  15  Beav.  b2i  :  Drosier  v.  Brereton,  15  Beav.  221.  Turniiike  bonds  are  real  securities 
for  some  purposes  ;  Robinson  v.  Robinson,  Lords  Justices,  1  De  Gox,  Mac.  &  Gord.  2-J:7,  262. 

('/)   Mortimore  v.  Mortirnore,  4  De  Gex  &  Jones,  472. 

{f>)  Stat.  4  &  5  Will.  IV,  c.  29.  Leaseholds  for  lives  perpetually  renewable  at  a  head 
rent,  form  real  securities  in  Ireland  ;  Macleod  v.  Annesley,  10  Beav.  600. 

(c)  Slat.  4  A  5  Will.  IV,  c.  20,  s.  2.  Ex  parte  French,  7  Sim.  510;  E.\  parte  LonI  Wil- 
liam Pawlelt,  1  riiill.  :>70  ;  Norris  v.  Wrii,'ht,  M  Beav.  201. 

[d)  Sect.  4.  (0   Sect.  5. 


360  OF  PERSONAL  ESTATE  GENERALLY. 

investments  shall  in  other  respects  be  reasonable  and  proper.(/) 
This  provision  has  been  made  retrospective  by  act  of  I*arlia- 
m€nt.(_9)  A  further  enactment  empowers  the  making  of  general 
orders  from  time  to  time  as  to  the  investment  of  cash  under  the 
control  of  the  Court  of  Chancery,  and  for  the  conversion  of  any 
SI.  per  cent,  bank  annuities,  standing  in  the  name  of  the  account- 
ant-general of  the  Court  of  Chancery,  in  trust  in  any  cause  or 
matter,  into  any  stocks,  funds,  or  securities,  upon  which  by  any 
^  ^  ^  such  o-eneral  order  cash  *under  the  control  of  the  court 
'-'"-'  may  be  invested,  (/i)  And  when  any  such  general  order 
shall  have  been  made,  trustees,  executors,  or  anministrators,  hav- 
ing power  to  invest  their  trust  funds  upon  government  securities, 
or  upon  Parliamentary  stocks,  funds,  or  securities,  or  any  of  them, 
may  invest  such  trust  funds  or  any  part  thereof  in  any  of  the 
stocks,  funds,  or  securities,  in  or  upon  which,  by  such  general 
order,  cash  under  the  control  of  the  court  may  from  time  to  time 
be  invested.(z)  In  pursuance  of  this  enactment  a  general  order 
has  been  made,  dated  the  1st  of  February,  1861,  authorizing  the 
investment  of  cash  under  the  control  of  the  court  in  bank  stock, 
East  India  stock,  exchequer  bills,  and  21.  10s.  per  cent,  annuities, 
and  upon  mortgage  of  freehold  and  copyhold  estates  respectively 
in  England  and  Wales,  as  well  as  in  consolidated  3^.  per  cent, 
annuities,  reduced  3/.  per  cent,  annuities,  and  new  3/.  per  cent, 
annuities.  (J) 

A  still  later  enactment  of  the  same  session  authorizes  trustees, 
having  trust  money  in  their  hands  which  it  is  their  duty  to  invest 
at  interest,  at  their  discretion  to  invest  the  same  in  any  of  the 
Parliamentary  stocks  or  public  funds,  or  in  government  securities, 
and  at  their  discretion  to  call  in  any  trust  funds  invested  in  any 
other  securities,  and  to  invest  the  same  on  any  such  securities  as 
aforesaid,  and  also  from  time  to  time  at  their  discretion  to  vary 
any  such  investments  as  aforesaid  for  others  of  the  same  nature; 
provided  that  no  such  original  investment  as  aforesaid  (except 
in  the  3^.  per  cent,  consolidated  bank  annuities),  and  no  such 
change  of  investment  as  aforesaid,  shall  be  made  where  there  is 

(/)  Stat.  22  &  2.3  Vict.  c.  35,  s.  32.  (/>)  Stat.  23  &  24  Vict.  c.  38,  s.  10. 

(§•)   Stat.  23  &  24  Vict.  c.  38,  s.  12.  (i)  Sect.  11. 

(j)  See  Equitable  Reversionary  Intere.?t  Society  v.  Fuller,  1  John.  &  Hem.  379  ;  Ro 
Langford,  2  John.  &  Hem.  458  ;  Re  Warde,  2  John.  &  Hem.  191. 


OF    SETTLEMENTS   OF    PERSONAL    PROPERTY.  361 

a  person  under  no  disability  entitled  in  *possession  to  re-  p.^g-^-, 
ceive  the  income  of  the  trust  fund  for  his  life  or  for  a  '-  " 
term  of  years  determinable  with  his  life,  or  for  any  greater  estate, 
without  the  consent  in  writing  of  such  person. (A-)  This  last  enact- 
ment, however,  like  the  other  provisions  in  the  same  act,  extends 
only  to  persons  acting  under  a  deed  executed,  or  a  will  executed 
or  confirmed  or  revived  by  a  codicil  executed  after  the  28th  of 
August,  1860,  the  date  of  the  act.(^)  It  is  doubtful  whether  the 
new  East  Indian  loan  of  1859  falls  within  the  meaning  of  East 
India  stock.(m) 

The  consent  of  the  persons  for  the  time  being  entitled  to  the 
income  of  the  property  is  generally  required,  in  settlements,  to 
any  change  of  investment  which  the  trustees  may  be  authorized 
to  make;  and  this  consent  is  sometimes  required  to  be  in  w-riting, 
and  occasionally  to  be  testified  by  deed.  Where  consent  is  re- 
quired, it  must  be  given  previously  to  or  at  the  time  of  the 
change  of  investment;(n)  for  as  the  consent  is  required  as  a  check 
upon  the  trustees,  a  subsequent  consent,  when  the  mischief  may 
be  done,  is  evidently  unavailing.  The  person  whose  consent  is 
required  is  not,  however,  the  sole  judge  of  the  propriety  of  any 
change  of  investment:  the  trustee,  by  virtue  of  his  office,  has 
also  a  discretion ;  and  if  he  should  consider  the  investment  in- 
eligible, he  may  refuse  to  make  it,  although  requested  so  to  do 
by  the  person  whose  consent  ought  to  be  obtained.(o)  But  the 
terms  of  the  instrument  may  require  the  trustees  to  change  the 
investments  at  the  request  of  any  given  person ;  and  in  this  case 
they  will  generally  be  bound  *to  act  accordingly,  unless  r^2Q9'] 
the  circumstances  of  the  case  should  be  such  as  were  evi- 
dently not  contemplated  when  the  settlement  was  made.(7J) 

In  settlements  of  personal  property  authority  is  sometimes 
given  to  the  trustees  to  make  investments  in  the  purchase  of 

(/,)   Stat.  23  &  24  Vict.  c.  14.5,  s.  25. 

(/)   Sect.  34. 

(m)  Re  Colne  Valley  and  Hal.stead  Railway,  b  Jur.  N.  S.  1123  ;  29  L.  J.  Chan.  33  ;  1  I)e 
Gex,  Fisher  &  Jones,  53. 

(w)  IJatenian  v.  Davis,  3  Madd.  98;  (ireenham  v.  Gibbeson,  10  Ring.  3(53,  E.  C.  h.  R. 
vol.  25  ;  Wiles  v.  Gresham,  2  Drewry,  258. 

{o)   Lee  V.  Young,  2  You.  &  Coll.  N.  C.  532. 

(p)  Boss  V.  (iod.sall,  1  You.  (fe  Coll.  N.  C.  017  ;  Cadogan  v.  Earl  of  Essc.\,  2  Drewry,  227. 


362  OF    PERSONAL   ESTATE   GENERALLY. 

landed  estates.  As  land  devolves  in  a  different  manner  from  per- 
sonal property,  it  is  obvious  tliat  a  simple  change  of  tlie  property 
from  personalty  to  land  would  in  many  cases  materially  dis- 
arrange the  destination  of  the  property.  Thus  if  a  person  en- 
titled under  the  settlement  to  a  reversionary  interest  in  the  settled 
fund  should  have  died  intestate,  his  administrator  would  be  en- 
titled to  such  interest,  so  long  as  the  property  continued  to  be 
personal,  but,  on  its  being  changed  into  real  estate,  it  would  shift 
to  his  heir  at  law.  In  order  to  obviate  this  inconvenience,  it  is 
so  contrived  that  the  lands  to  be  purchased  should,  from  the 
moment  the  purchase  is  made,  be  considered  as  personal  prop- 
erty.^     To    effect   this    object,   the   lands   when    purchased   are 

1  It  is  a  well-established  rule  of  equity,  or  purchase  is  not  to  be  made  until  a  future 
that  where  land  is  directed  to  be  sold,  and  time,  provided  there  is  no  contingency,  upon 
thereby  converted  into  money,  it  shall  be  the  happening  or  not  happening  of  which, 
considered  as  money  ;  and  that  money,  which  the  intended  conversion  will  be  defeated  ; 
is  to  be  employed  in  the  purchase  of  land,  Heading  r.  Blackwell,  1  Baldw.  R.  Ififi;  Fairly 
shall  be  regarded  as  real  property  ;  Craig  v.  v.  Kline.  Penning.  R.  551  ;  Price  v.  Watkina, 
Leslie,  3  Wheat.  R.  377;  Peter,  Exr.,  et  al.,  1  Dal.  R.  8;  Rinehart  v.  Harrison's  Exrs.,  1 
V.  Beverly  et  al.,  10  Pet.  R.  534:  Hawley  et  Baldw.  R.  177;  Brothers  v.  Cartwright,  2 
al.  V.  James  et  al.,  5  Paige's  Ch.  R.  318;  Jones's  Eq.  R.  113;  Harcum  v.  Hudnall,  14 
Smith  et  al.  v.  McCrary  et  al.,  3  Ired.  Eq.  R.  Gratt.  R.  369  ;  Hooker  v.  Gentry,  3  Met. 
204;  Golt  et  al.,  Exrs.,  v.  Cook  et  al.,  7  (Ky.)  R.  363.  But  where  the  intended  trans- 
Paige's  Ch.  R.  521  ;  Kane  v  Golt  et  al  ,  Ibid.,  formation  is  to  be  effected  upon  a  contingency, 
S.  C,  24  Wend.  R.  641  ;  The  Commonwealth  there  will  be  no  conversion  until  that  contin- 
V.  Martin's  Exrs.,  &c.,  5  Munf.  R.  121  ;  Pratt  gency  has  happened  :  Evans  v.  Kingsberry,  2 
V.  Taliaferro,  3  Leigh's  R.  419  ;  Siter  et  al.  v.  Rand.  R.  120  ;  Storer  v.  Zimmerman,  21  Pa. 
McClanchan  et  al.,  2  Gratt.  R.  280  ;  Reading  St.  R.  324;  Cl.ay  et  al.  v.  Hart,  7  Dana's  R. 
V.  Blackwell,  1  Baldw.  R.  166;  Fairly  v.  11;  Nagle's  Appeal,  13  Pa.  St.  R.  260; 
Kline,  Penning.  R.  561  ;  Hurlt  v.  Fisher,  1  Bleight  w  Manufac.  &  Mechan.  Bank,  10  Pa. 
Har.  &  Gill's  R.  88;  Leadenham's  Exr.  v.  St.  R.  132;  Wright  v.  The  Trustees  of  the 
Nicholson  et  al..  Id.  267;  Morrow  v.  Bren-  M.  E.  Church,  1  HofiF.  R.  213;  Henry  v. 
izer,  2  Raw  R.  185;  Burr  v.  Sim  et  al.,  1  McCloskey,  9  Wat.  R.  142;  Anewalt's  Ap., 
Wh.  R.  252 ;  Allison,  Exr.,  v.  Wilson's  Exrs.,  42  Pa.  St.  R.  414  ;  Ross  v.  Drake,  37  Id.  373. 
13  Serg.  &  Raw.  R.  332 ;  Price  v.  "Watkins,  ]  Where  land  is  directed  to  be  sold  for  a  par- 
Dai.  R.  8  ;  Rice  v.  Bixler,  1  Wat.  &  Serg.  R.  ticular  purpose,  and  is  sold  accordingly,  and 
445  ;  Willing  v.  Peters,  7  Pa.  St.  R.  287  ;  Lo-  there  is  a  balance  of  money  after  the  accom- 
rillard  et  al.  v.  Coster  et  al.,  5  Paige's  Ch.  plishment  of  the  purpose  for  which  the  sale 
R.  172;  Drake  v.  Pell,  3  Edwd.  Ch.  R.  207;  was  made,  that  money  will  be  considered  as 
Rinehart  v.  Harrison's  Exrs.,  1  Baldw.  R.  land,  unless  the  testator,  donor,  or  other  per- 
177;  Marsh  v.  Wheeler,  2  Edwd.  Ch.  R.  160;  son  by  whose  direction  the  conversion  was 
Tazewell  et  al.  v.  Smith,  Admr.,  1  Rand.  R.  made,  has  clearly  shown  that  it  was  his  wish 
313;  Parkinson's  Est.,  32  Pa.  St.  R.  457;  that  the  character  of  personalty  should  be 
Holland  v.  Craft,  3  Gray's  R.  162;  Lough-  stamped  upon  the  whole  property;  and  this 
borough  V.  Loughborough,  14  B.  Mon.  R.  rule  applies  equally,  where  a  part  of  a  fund 
549  ;  High  v.  Worley,  33  Ala.  R.  196;  For-  is  sufiRcient  to  accomplish  a  purpo.=e  to  be  at- 
syth  V.  Rathbone,  34  Barb.  R.  388,  And  tained  through  the  purchase  of  land  ;  Craig 
this  rule  will  operate,  even  though  the  sale  v.  Leslie,  3  Wheat.  R.  577  ;  Hawley  et  al.  v. 


OF    SETTLEMENTS    OF    PERSONAL    PROPERTY.  363 

directed  to  be  held  by  the  trustees  upon  trust  to  sell  them,  with 
the  consent  of  the  equitable  tenants  for  life,  during  their  lives, 
and  after  their  decease  at  the  discretion  of  the  trustees. (§')  This 
trust  for  sale  converts  the  lands  into  money  in  the  contemplation 
of  equity;  for  it  is  a  rule  of  equity,  that  whatever  is  agreed  to  be 
done  shall  be  considered  as  done  already.  In  the  words  of  Sir 
Thomas  Sewell,(r)  "  ISTothing  is  better  established  than  this  prin- 
ciple, that  money  directed  to  be  employed  "in  the  purchase  of 
land,  and  land  directed  to  be  sold  and  turned  into  money,  are  to 
be  considered  as  that  species  of  property  into  which  they  are 
directed  to  be  converted;  and  *this  in  whatever  manner  r^-,r^n-i 
the  direction  is  given,  whether  by  will,  by  way  of  con-  ^ 
tract,  marriage  articles,  settlement,  or  otherwise,  and  whether 
the  money  is  actually  deposited  or  only  covenanted  to  be  paid, 
whether  tJie  land  is  actually  conveyed  or  only  agreed  to  be  con- 
veyed. The  owner  of  the  fund  or  the  contracting  parties  may 
make  land  money,  or  money  land."  And  if  land  is  clearly  di- 
rected to  be  sold,  the  circumstance  that  the  consent  of  some 
person  or  persons  is  required  to  the  sale  will  not  prevent  the  im- 
mediate conversion  of  the  land  into  money  in  the  contemplation 
of  equity,  although  such  a  circumstance  may  often  cause  a  long 
postponement  of  the  period  of  its  actual  conversion. (5)  Notwith- 
standing a  trust  for  the  sale  of  laud,  if  all  the  parties  interested 

{q)   See  Appendix  (B) . 

(r)   In  Fletcher  v.  Ashbiirner,  1  Bro.  C.  C.  499,  approved  by  Lord  Alvanley,  in  Wheldale 
V.  Partridge,  5  Ves.  39fi,  397.     See,  also,  Griffith  v.  Ricketts,  7  Hare,  299. 
{s)   See  Lechmere  v.  Earl  of  Carlisle,  3  P.  Wms.  218,  219. 


James  et  al.,  5  Paige's  Ch.  R.  318;  Smith  et  but  this  rule  of  considering  money  as  land,  or 

al.  V.   McCrary  et  al.,   3  Ired.   Eq.   R.   204;  land  as  money,  will  not  apply  if  the  special 

The    Commonwealth    v.    Martin's    Exrs.,    5  purpose  for  which   the    conversion   is  to   be 

Munf.   R.    121  ;   by  this   last  case,   it  seems,  made  fail ;  neither  does  it  i/pp/y,  if  the  effect 

that  the  conversion  will  not  be  enforced,  if  it  would  ojierc/te  an  escheat." 
should   operate  injuriously  upon  the  benefi-        Conversion,  in  short,  is  a  question   of  in- 

ciary,  for,  to  quote  the  words  of  Judge  Coul-  tention  ;  and  to  effect  it  by  will,  the  direction 

ter,   '•  Money  directed  to  be  employed  in  the  to   convert   must    be   positive   and    explicit; 

purchase  of  land,   and   land   directed   to   be  Chew  v.  Nicklin,  45  Pa.  St.  R.  84;  Edward's 

sold  and  turned  into  money,  are  to  be  con-  Ap.,48Id.  144.     AVhere  by  equitable  conver- 

sidered  as  that  species  of  property  into  which  sion  money  is  considered  as  land,  it  cannot  in 

they  are  directed  to  be  converted.    ...   It  is  any  case  retain  its  inheritable  quality  as  real 

also  an  established  principle,  that,  if  a  party  estate,  further  than  the  first  descent  ;  Dyer  w. 

having  such  fund  dies,  it  will  go  to  his  real  Cornell,  4  Pa.  St.  R.  301  ;  and  the  converse  of 

or  personal  repiesentatives,  as  money  or  land,  this  is  also  the  law. 
according  as  he  himself  would  have  taken  it; 


3G4  OF    PERSONAL    ESTATE    GENERALLY. 

should  be  of  full  ag:c,(/)  and  if  females  un married, (?/)  they  may 
elect  that  the  land  shall  not  be  sold ;  and  after  such  election  tlie 
land  will  be  considered  as  real  estate  in  equity  as  well  as  at 
law.(:r)  And  the  election  of  the  parties  need  not  be  expressed  in 
80  many  words,  but  may  be  inferred  from  any  acts  by  which 
their  intention  is  clearly  shown. (i/)^ 

All  properly  drawn  settlements  of  personal  estate  formerly 
contained  a  power  for  the  trustees  or  trustee  for  the  time  being, 
acting  in  the  execution  of  the  trusts,  to  giv^e  receipts  for  any 
money  payable  to  them  or  him  under  the  trusts,  which  receipts, 
it  was  declared,  should  effectually  discharge  the  persons  paying 
the  money  from  all  responsibility  as  to  its  application.  The 
necessity  of  this  provision  arose  from  a  rule  of  equity,  by  which 
any  person  who  paid  money  to  another,  whom  he  knew  to  be 
r*9«4n  nierely  a  trustee,  was  bound  to  see  the  money  *applied 
*-  -^  according  to  the  trusts.(z)  If,  however,  the  trusts  were 
of  such  a  kind  as  to  require  time  and  discretion  to  carry  them 
into  effect,  the  receipt  of  the  trustees  would,  from  the  nature  of 
the  case,  have  been  an  effectual  discharge,  without  an  express 
clause  for  this  purpose. (a)^     But  by  a  recent  act  of  Parliament  it 

(<)   Van  V.  Barnett,  19  Ves.  102. 

(70  Oldham  v.  Hughes,  2  Atk.  452. 

(x)  Davies  v.  Ashford,  15  Sim.  42. 

(y)   Lingen  v.  Sowray,  1  P.  Wms.  172  ;  Cookson  v.  Reay,  5  Beav.  22;   12  CI.  &  Fin.  121. 

(2)   Spalding  v.  Shalmer,  1  Yern.  301  ;  Lloyd  v.  Baldwin,  1  Yes.  Sen.  173. 

(</)   Doran  v.  Wiltshire,  3  Swanst.  699  ;  Balfour  v.  Welland,  16  Yes.  151. 

1  In  all  cases  where  there  would  be  an  equi-  lion  of  one  alone  is  not  sufficient ;  Willing  v. 

table  conversion  of  land  into  monej",  or  money  Peters,  7   Pa.   St.  R.    286;   Shallenberger  v. 

into  land,  the  person  for  whose  use  the  prop-  Ashwortb,  25   Pa.    St.   R.    152  ;   Rinehart  v. 

erty  is  given,  may  elect  to  receive  it  as  money  Harrison's  Exrs.,  1  Baldw.  R.   177,  in  which 

or  land  according  to  his  option:  The  Com-  last  case,  it  was  also  decided,  that  election  can 

monwealth   v.    Martin's  Exrs.,   5  Munf.    R.  only  be  made  by  the  person  or  persons  first 

121  ;  Burr  v.  Sim  et  al.,  1  Wh.  R.  252  ;  Smith  entitled. 

V.  Starr,  3  Id.   65  ;   Rice  v.  Bixler,  1  Wat.  &        "  Where  trust  property  has  been  sold,  and 

Serg.  R.  445  ;  Willing  v.  Peters,  7  Pa.  St.  R.  the  purchase-money  is  to  be  reinvested  upon 

2-<7  ;    Tazewell  et    al.    v.    Smith,    Admr.,   1  trusts  which  require  time  and  discretion,  or 

Rand.  R.  313  ;  but  in  order  to  make  this  elec-  the  acts  of   sale  and   reinvestment  are  con- 

tion,  he  must  be  entitled  to  the  whole  estate,  templatedto  be  at  a  distance  from  eacb  other, 

or  fund  ;   Craig  v.  Leslie,    3  Wheat.  R.  577  ,  the  purchaser    is  not  bound  to  look  to   the 

Rinehart    v.    Harrison's    Exrs.,  1   Baldw.  R.  application  of  the  purchase-money ;    Worm- 

177  ;   and  where   there  is  more  than  one  dis-  ley  et  al.  v.  Wormley  etal.,  8  Wheat.  R.  421  ; 

tributee,  they  must  all  agree  in  determining  Lining  v.  Peters   et  al.,  2  Dessauss.  R.  375  ; 

the  character  of  the  property,  for  the  elec-  Hauser  et  al.  v.  Shore  et  al.,  5  Ired.  Eq.  R. 


OF    SETTLEMENTS   OF    PERSONAL    PROPERTY.  365 

is  provided,  that  the  bona  fde  payment  to  and  receipt  of  any 
person  to  whom  any  purchase  or  mortgage  money  shall  be  payable 
upon  any  express  or  implied  trust  shall  eflfectually  discharge  the 
person  paying  the  same  from  seeing  to  the  application  or  being 
answerable  for  the  misapplication  thereof,  unless  the  contrary 
shall  be  expressly  declared,  by  the  instrument  creating  the  trust 
or  security. (6)  It  is  the  better  opinion  that  this  enactment  is  not 
retrospective;  for  it  can  scarcely  be  supposed  that  the  legislature 
contemplated  the  existence  of  a  prescience  of  this  act  in  the 
authors  of  old  settlements,  inducing  them  to  insert  therein  an 
express  declaration  that  the  act  should  not  apply.  And  with 
respect  to  instruments  executed  and  wills  or  codicils  confirmed 
or  revived  by  codicil  executed  after  the  28th  August,  1860,  it  is 
now  provided  that  the  receipts  in  writing  of  any  trustees  or 
trustee  for  any  money  payable  to  them  or  him,  by  reason  or  in 
the  exercise  of  any  trusts  or  powers  reposed  or  vested  in  them 

{b)   Stat.  22  &  23  Vict.  c.  35,  s.  23. 


357  ;  nor  is  he  so  bound,  where,  in  accord-  of  a  trust  so  unlimited  and  undefined.     But, 

ance  with  a  power  for  that  purpose,  lands  are  if  the    trust  be  of    such  a    nature,   that  the 

sold    for    the    payment  of  debts  generally  ;  purchaser  can  reasonably  be  expected  to  see 

Hannum  et  al.  v.  Spear,  2  Dal.  R.  291,  S.  C,  to  the  application  of  the  purchase-money,  as 

1  Yeates's  R.  553  ;  Hauser  et  al.  v.  Shore  et  if  it  be  for  the  payment  of   legacies,  which 

al.,  5  Ired.   Eq.  R.  357  ;  Davis  v.  Christian,  are    scheduled  or    specified,  he    is  bound  to 

15  Uratt.    R.    11;     Goodrich    v.     Proctor,  1  see  that  the  money  is  applied  accordingly." 

Gray's  R.   567;    though    it   is  otherwise,   of  See  also,  Dalzell  v.  Crawford,  2  Pa.  L.  Jour, 

debts  scheduled  or  specified  ;  Grant  v.  Hook,  23;  S.  C,   1  Pars.  Eq.  Cas   37  ;  Cadbury  v. 

13  Serg.  &  Raw.  R.  262  ;  and  so  where  trust  Duval,   10  Pa.   St.  R.  267  ;  St.  Mary's  Ch.  v. 

property  has    been  sold  for    the    purpose  of  Stockton,  4  Halst.  Ch.  R.  520.      "  In  all  cases 

distribution  among  the  owners,  the  purchaser  .   .   .   where   the    objects  are    not  so    defined 

has  been  held  not  liable  for  the  misapplica-  as  to   be  brought  at  once  to  the  view  of  the 

tion  of    the  proceeds  ;    Hunt  et    al.  v.   The  purchTiser,  it  is  settled  that  he  is  not  aflfected 

State  Bank  et  al.,  2  Dev.  Eq.  R.  60.  by  them,  and  has  only  to  pay  the  purchase- 

The  proper    mode  of   discovering  whether  money  ;"    Garrett  v.  Macon  et  al.,  2  Brock- 

the  purchaser  of   property  held    in  trust,  is  enb.  R.  234. 

to  look  to  the  application  of   the  purchase-        In  North  Carolina,  however,  it  seems  to  be 

money,  is.  to  ascertain  whether  the  trust  is  an  open  question,  whether  a  purchaser  froiu 

for  general   or  specific  purposes  ;   if  the  for-  a  trustee  with  a  power  to  sell,  must  see  to  the 

mer,  the    purchaser  is  not  bound;    thus,  in  application  of  the  purchase-money  ;  Rutledge 

Grant    V.  Hook,   13    Serg.   &    Raw.  "R.   262,  v.  Smith,  1  Busbee's  Eq.  R.  283. 
Judge  Duncan  says,    "  Where  the  trust  is  for        See  also,  Nicholls  v.  Peak,  1  Beasley's  R. 

the    payment    of  debts    generally,  the    pur-  69  ;   Cardwell  v.   Cheatham,  2  Head's  R.  14  ; 

chaser  is    not  bound  to    see  to  the  applica-  Pa.  Life   Ins.   Co.  v.  Austin,   42   Pa.   St.  R. 

tion    of    the    purchase-money,    although    he  267;   and  Hill   on   Trustees,   3(1   Am.  eil.,  p. 

has   notice  of   the  debts.     For   a  purchaser  342,  note  1. 
cannot  be  expected  to  see  to  the  observance 


366  OK.  PERSONAL  ESTATE  GENERALLY. 

or  him,  shall  be  sufficient  discharges  for  the  money  therein  ex- 
pressed to  be  received,  and  shall  eftectually  exonerate  the  person 
paying  such  money  from  seeing  to  the  application  thereof,  or 
from  being  answerable  for  any  loss  or  misapplication  thereo£(c) 

Every  settlement,  the  trusts  of  which  were  likely  to  be  of  long 
r*9Rf^l  ^^^^'''^^^c»n,  formerly  contained  a  power  of  ^appointing  new 
•-  "  -^  trustees  in  the  event  of  any  trustee  dying,  going  to  reside 
beyond  the  seas,  desiring  to  be  discharged,  refusing,  or  becoming 
incapable  to  act  in  the  execution  of  the  trusts.(<:/)'  And  as  the 
mere  appointment  of  a  trustee  was  not  sufficient  to  vest  the  trust 
property  in  him,  it  was  usual  and  proper  to  direct  that,  on  every 
such  appointment,  the  trust  proj)erty  should  be  so  conveyed, 
assigned,  transferred,  or  paid,  as  effectually  to  vest  the  same  in 
the  new  trustee  jointly  with  the  surviving  or  continuing  trustees, 
or  solel}',  as  the  case  might  require.  Every  new  trustee  was  also 
invested  with  the  same  powers  as  the  original  trustees.  But 
the  act  to  which  we  have  already  referred,(f)  now  provides  that 
whenever  any  trustee,  either  original  or  substituted,  and  whether 
appointed  by  the  Court  of  Chancery  or  otherwise,  shall  die,  or 
desire  to  be  discharged  from  or  refuse  or  become  unfit  or  incapa- 
ble to  act  in  the  trusts  or  powers  in  him  reposed,  before  the 
same  shall  have  been,  fully  discharged  and  performed,  it  shall  be 
lawful  for  the  person  or  persons  nominated  for  that  purpose  by 
the  deed,  will,  or  other  instrument  creating  the  trust  (if  any),  or 
if  there  be  no  such  person  or  no  such  person  able  and  willing  to 
act,  then  for  the  surviving  or  continuing  trustees  or  trustee  for 
the  time  being,  or  the  acting  executors  or  executor,  or  adminis- 

(f)   Stat.  23  &  24  Vict.  c.  U5,  s.  29. '  (e)   Stat.  23  &  24  Vict.  c.  145,  s.  27. 

{fl)  See  Appendix  (B). 

1  For  the  American   Statute  Law  on  the  of  Mass.  (1860),  p.  601,  sec.  7  ;  Revis.  Stats, 

subject   of  the    appointment  of  trustees,   by  of  Maine    (18.57).    p.    435,    sec.    6  ;  Ni.xon's 

the  courts,  in   the  place  of  others  dying,  re-  Dig.    of  the   Ls.    of  N.    J.    (1861),    p.   578, 

signing,    &c.,    see    N.    H.    Compiled    Stats,  sec.    13  ;  Revis.   Stats,  of  Wisconsin   (1858), 

(1853),  426;  3   Revis.   Stats,  of  N.   Y.  (5th  p.   532,   sec.    27;  Stats,    of  S.    C.    (1786  .to 

ed.),  p.  22,  §  90  ;  Matthew's  Dig.  of  the  Ls.  1814),  vol.  v,  pp.  277,    278  ;  Caruther's  and 

of  Va.    (1857),    vol.    1,   pp.    263-4;    Revis.  Nicholson's  Stat.   Ls.  of  Tenn.   693;  Vol.  ii 

Stats,  of  Vt.  (1839),  300  ;  Vol.  ii  Compiled  Revis.  Stats  tf  0.  (1861),  p.  1630,  sec.  67; 

Ls.    of  Michigan  (1857),  p.  828,   sec.  27  ;  2  Stats,  of  Minnesota  (1849-1858),  p.  384,  sec. 

Maryland  Code  (I860),  p.  579,  sec.  118  ;  Code  27  ;  Purd.  Dig.    (1861),  p.  970,  §    23,  and   p. 

of  Ala.  (1852),   p.  535,  §  3000;  Gen.   Stats.  972,  H  38-41  ;  and  p.  975,  §  57. 


OF    SETTLEMENTS   OF    PERSONAL   PROPERTY.  367 

trators  or  administrator  of  the  last  surviving  and  continuing 
trustee,  or  for  the  last  retiring  trustee,  by  writing,  to  appoint 
any  other  person  or  persons  to  be  a  trustee  or  trustees  in  the 
place  of  the  trustee  or  trustees  so  dying  or  desiring  to  be  dis 
charged,  or  refusing,  or  becoming  unfit  or  incapable  to  act  as 
aforesaid;  and  so  often  as  any  new  trustee  or  trustees  shall  be  so 
appointed  as  aforesaid,  all  the  trust  property  (if  any)  which  for 
the  time  being  shall  be  vested  in  the  surviving  or  continuing 
trustees  or  trustee,  or  in  the  heirs,  executors,  or  administrators  of 
any  ^trustee,  shall,  with  all  convenient  speed,  be  con-  r^ocfi-i 
veyed,  assigned,  and  transferred,  so  that  the  same  may  be  *- 
legally  and  effectually  vested  in  such  new  trustee  or  trustees, 
either  solely  or  jointly  with  the  surviving  or  continuing  trustees 
or  trustee  as  the  case  may  require,  and  every  new  trustee  or  trus- 
tees to  be  appointed  as  aforesaid,  as  well  before  as  after  such 
conveyance  or  assignment  as  aforesaid,  and  also  every  trustee 
appointed  by  the  Court  of  Chancery,  either  before  or  after  the 
passing  of  the  act,  shall  have  the  same  powers,  authorities,  and 
discretions,  and  shall  in  all  respects  act,  as  if  he  had  been  origi- 
nally nominated  a  trustee  by  the  deed,  will,  or  other  instrument 
creating  the  trust.  A  mere  power  to  appoint  a  new  trustee  does 
not  render  swell  appointment  imperative;  and  in  case  of  the 
death  of  any  trustee,  the  survivors  or  survivor  may  still  carry 
on  the  ordinary  business  of  the  trust. (/)  "When  a  trustee  has 
once  accepted  the  office,  he  has  ito  right  to  retire,  unless  the 
person  having  the  power  to  appoint  another  trustee  in  the  event 
of  his  retiring  should  consent  to  do  &o;{g)  or  unless  from  unfore- 
seen circumstances,  the  duties  of  the  trust  should  have  become 
more  onerous  than  was  contemplated  by  the  trustee  when  he 
accepted  the  office. (A)  When  several  deeds  are  required  for  the 
appointment  of  a  new  trustee,  it  is  now  sufiicient  if  one  of  the 
deeds  be  stamped  with  a  duty  of  11.  15s.  and  the  others  wdth  the 
same  duty  as  would  be  payable  on  a  duplicate  thereof.(?i) 

The  Trustee  Act,  1850, (/•)  the  provisions  of  which  have  been 

(/)  Warburton  v.  Sandys,  14  Sim.  f)22.  (/<)   Coventry  v.  Coventry,  1  Keen,  768. 

(g)  Adams  v.  Paynter,  1  Coll.  532. 

(i)  Stat.  24  &  25  Vict.  c.  91,  8.  30.  See  Principles  of  the  Law  of  Real  Property,  I3fi, 
0th  ed. 

{/:)  Stat.  13  &  14  Vict.  c.  60.  See  Principles  of  the  Law  of  Ileal  Property,  p.  112,  3d  & 
4th  eds.  i   148,  6th  ed.  ;    165,  6th  ed. 


368  OF   TERSONAL   ESTATE   GENERALLY. 

r*9A7"i  extended  by  a  more  recent  act,(?)  empowers  *the  Court 
'-  -'  of  Chancery  to  appoint  a  new  trustee  in  all  cases  where  it 
is  inexpedient,  difficult,  or  impracticable  so  to  do  without  the 
assistance  of  that  court,  and  either  in  substitution  for,  or  in  ad- 
dition to,  any  existing  trustee, (»/)  and  whether  there  be  any  ex- 
isting trustee  or  not.(??)  Provision  is  also  made  for  the  appoint- 
ment of  anew  trustee  in  lieu  of  any  trustee  who  may  have  been 
convicted  of  felony,(o)  and  for  the  infancy,( ^j)  lunacy,  or  idiocy 
of  any  trustee  or  executor,(ry)  and  for  his  being  out  of  the  juris- 
diction of  the  court,  or  not  being  found,  and  for  its  being  uncer- 
tain whether  he  is  living  or  dead,(r)  and  for  his  neglecting  or 
refusing  to  transfer  any  stock,  or  to  receive  the  dividends  or  in- 
come thereof,  or  to  sue  for  or  recover  any  chose  in  action. (s)^ 

The  office  of  trustee  of  a  settlement  is  one  involving  great  re- 
sponsibility, and  frequently  much  trouble,  without  any  remunera- 
tion ;  for  a  trustee  is  not  allowed  to  make  a  profit  of  his  trust. 
And  if  he  be  a  solicitor,  he  cannot  receive  payment  for  his  pro- 
fessional trouble  incurred  in  the  business  of  the  trust,(/)  unless 
he  expressly  stipulate  before  accepting  the  office,  that  he  shall  be 
permitted  to  do  so,{u)  or  unless  his  charges  be  voluntarily  paid 
by  the  cestui  que  trust  with  full  knowledge  that  tRfey  might  have 
been  resisted. (a:)  But  a  trustee  may  charge  *against  the 
^  "  -^  trust  property  all  costs  and  expenses  properly  incurred  in 
the  conduct  of  the  trust.  And,  it  has  been  held,  that  in  the  event 
of  a  suit  being  brought  against  the  trustees,  one  of  the  trustees, 
being  a  solicitor,  may  be  employed  by  his  co-trustees,  and  may 


(/)   Stat.  15  &  10  Vict.  c.  55.  (o)  Ibid.  sect.  8. 

(m)  Stat.  1.3  &  U  Vict.  c.  60,  ss.  32,  35.  {p)   Sect.  3. 

(71)   Stat.  15  &  16  Vict.  c.  55,  s.  9. 

{q)   Stat.  13  &  14  Vict.  c.  60,  ss.  5,  6  ;   15  &  16  Vict.  c.  55,  ss.  10,  11. 

(;•)   Stat.  13  &  14  Vict.  e.  60,  ss.  22,  25. 

(s)  Ibid.  ss.  23,  24,  25 ;  stat.  15  &  16  Vict.  c.  55,  ss.  4,  5. 

(t)  Moore  V.  Frowd,  3  My.  &  Craig,  45  ;  Fraser  v.  Palmer,  4  You.  &  Coll.  515  ;  Collins  v. 
Carey,  2  Beav.  128;  Bainbrigge  v.  Blair,  8  Beav.  588  ;  Todd  v.  Wilson,  9  Beav.  486.  See 
Ex  parte  Newton,  3  De  Qex  &  Sm.  684. 

(«)   Re  Sherwood,  3  Beav.  388. 

(x)  Stanes  v.  Parker,  9  Beav.  385.     See  Gomley  v.  Wood,  3  Jones  &  Lat.  678. 


1  See  ante,  p.  265,  note. 


OF   SETTLEMENTS   OF    PERSONAL    PROPERTY.  369 

make  the  usual  charges  against  them,  provided  the  amonut  of 
the  costs  he  not  thereby  increased,  (j/)^  And  every  trustee  is  al- 
lowed in  a  suit  his  full  costs,  as  between  solicitor  and  client.(2) 
But  his  right  to  costs  may  he  forfeited  by  his  negligence  or  mis- 
conduct ;(a)  or  he  may  even  be  made  to  pay  the  costs  of  the  other 
parties. (6)  As  the  trustee  has  the  legal  title  to  the  property,  he 
is  often  enabled,  if  fraudulently  inclined,  to  sell  it  or  spend  it  for 
his  own  benefit.  It  Is  therefore  highly  proper  that  his  conduct 
should  be  narrowly  scrutinized,  and  that  he  should  be  invariably 
punished  for  any  breach  of  faith.  But  the  Court  of  Chancery 
goes  further  than  this,  and  punishes,  with  almost  equal  severity, 
his  neglect  of  duties,  which  in  many  cases  he  scarcely  knows  that 
he  has  undertaken.  Thus,  if  a  trustee,  by  his  negligence  or  mis- 
placed confidence  in  his  co-trustee,  gives  him  an  opportunity  to 
commit  a  breach  of  trust,  of  which  opportunity  the  co-trustee 
avails  himself,  the  innocent  trustee  will  be  made  to  replace  the 
whole  of  the  fund  abstracted  by  the  other.(c)  So  if  the  trustee 
should  depart  from  the  letter  of  his  trust,  as  by  investing  the 
trust  fund  on  *an  unauthorized  security,  although  at  the  r^^^q-i 
importunity  of  some  of  the  parties  inter.ested,  and  with  a  '-  *"  -' 
bona  fide  desire  to  benefit  them  all,  he  will  be  answerable  for  any 
loss  which  such  departure  may  have  occasioned.((i)  And  if,  being 
ignorant  of  law,  he  should  give  himself  up  entirely  to  his  profes- 
sional adviser,  he  may  still  suffer  from  the  mistake  of  his  solicitor 
or  conveyancer  ;(e)  and  in  such  a  case  he  will  scarcely  perhaps 

(y)  Cradock  v.  Piper,  1  Mac.  &  Gord.  664.  See,  however,  Lincoln  v.  Windsor,  9  Hare, 
158 ;  Lyon  v.  Baker,  5  De  Gex  &  Sm.  622  j  Broughton  v.  Broughton,  L.  C.  1  Jur.  N.  S. 
965; '5  De  Gex,  M.  &  G.  160. 

(z)   2  Fonb.  Eq.  176. 

(a)  Ciimpbell  v.  Campbell,  2  My.  &  Craig,  25  ;  Howard  v.  Rhodes,  1  Keen,  581. 

(h)  Wilson  V.  Wilson,  2  Keen,  249  ;  Willis  v.  Hi.scox,  4  My.  &  Craig,  197  ;  Firrain  v. 
Pulham,  2  De  Gex  k  Sm.  99. 

(c)  Lord  Shipbrook  v.  Lord  Hinchinbrook,  11  Ves.  252;  Brice  v.  Stokes,  11  Ves.  319; 
Hanbury  f .  Kirkland,  .3  Sim.  265;  Booth  v.  Booth,  1  Beav.  125  ;  Broadhurst  v.  Balguy,  1 
You.  k  Coll.  N.  C.  16  ;  Styles  v.  Guy,  1  Mac.  &  Gard.  422;  Dix  v.  Burford,  19  Beav.  409. 

(d)  Driver  v.  Scott,  4  Russ.  195  ;  Pride  v.  Fooks,  2  Beav.  430;  Forrest  v.  Elwes,  4  Ves. 
497  ;  Watts  V.  Girdlestone,  6  Beav.  188. 

(b)  Willis  V.  Hi.scox,  4  My.  &  Craig,  197;  Angier  v.  Stannard,  3  My.  &  Keen,  566; 
Hamp.shire  v.  Bradley,  2  Coll.  34 ;  Boulton  v.  Beard,  3  De  Gex,  M.  &  G.  608.  See,  how- 
ever, Poole  V.  Pass,  1  Beav.  600  ;  Holford  v.  Phipps,  3  Beav.  434  ;  4  Beav.  475. 

^  See  the  case  of  Robinson  v.  Pelt,  2  Lead-  note,  the  whole  subject  of  the  compensation 
ing  Cases  in  Equity,  206,  where  in  an  able    of  trustees  is  considered. 

24 


370  OF   PERSONAL   ESTATE   GENERALLY. 

see  the  justice  of  the  remark  tliat  he  might  (had  lie  known  how) 
have  chosen  a  wiser  soHeitor,  or  a  more  learned  counseh(/)'  In 
all  ordinary  settlements,  clauses  used  to  he  inserted  for  the  in- 
demnity and  reimbursement  of  trustees,  to  the  eft'ect  that  they 
should  not  be  answerable  the  one  for  the  other  of  them,  or  for 
signing  receipts  for  the  sake  of  conformity,  or  for  involuntary 
loss;  and  that  they  might  reimburse  themselves  out  of  the  trust 
funds  all  costs  and  expenses  incurred  in  relation  to  the  trust. 
But  these  clauses,  though  often  very  highly  valued  by  trustees, 
really  afforded  them  little,  if  any,  further  protection  than  they 
would  have  been  entitled  to,  if  left  to  the  ordinary  rules  of 
equity.(^)  It  has,  however,  been  recently  enacted  that  every 
deed,  will,  or  other  instrument  creating  a  trust,  either  expressly 
or  by  implication,  shall  be  deemed  to  contain  these  clauses. (A) 
It  would  have  been  more  direct,  and  therefore  more  philo- 
sophical, to  alter  the  rules  of  equity  with  respect  to  trustees,  if 

(/)  3  My.  &  Keen,  572. 

{g)   Fenwick  v.  Grreenwell,  10  Beav.  412 ;   Brumridge  v.  Brumridge,  27  Beav.  5. 

(h)  Stat.  22  &  23  Vict.  c.  35,  s.  31; 


1  Where  trustees  act  ^o?(«  ^^/f ,  and  with  he  may  rely  with  entire  confidence  ;  Freeman 
due  diligence,  they  have  always  received  the  et  al.  v.  Cook  et  al.,  6  Ired  Eq.  R.  373  ; 
favor  and  protection  of  courts  of  equity,  Weber  v.  Samuel,  7  Barr's  R.  510 ;  Ilay- 
and  their  acts  are  regarded  with  the  most  den's  Esrs.  v.  Marmaduke,  19  Mo.  R.  403; 
indulgent  consideration  ;  but,  where  they  Ihmsen's  Ap.,  43  Pa.  St.  R.  431. 
have  betrayed  their  trust,  grossly  violated  In  the  case  of  Rogers  et  al.,  Exrs.,  t'.  Ben- 
their  duty,  or  been  guilty  of  unreasonable  son  et  al.,  5  Johns.  Ch.  R.  640,  where  a 
negligence,  their  acts  are  inspected  with  the  trustee,  in  his  character  of  counsel,  gave  an 
severest  scrutiny,  and  they  are  dealt  with  opinion  in  writing  concerning  the  title  to 
according  to  the  rules  of  strict  justice  ;  Dif-  certain  lands  not  included  in  the  tru.st,  but 
fenderffer  v.  Winder,  3  Gill  &  Johns.  R.  312  ;  the  opinion  was  so  loosely  drawn  as  to  apply 
Gilbert  v.  Sutliff,  3  0.  R.  129  ;  Ellig  v.  Na-  to  the  trust  estate,  and  the  person  to  whom 
glee,  9  Gal.  R.  683.  A  trustee  may,  in  the  the  opinion  was  given  made  sale  of  the  trust 
discharge  of  his  duty,  consult  the  opinion  of  property,  it  was  held  that  the  trustee  should 
counsel,  and  if  it  has  been  reasonably  and  not  be  liable  for  the  act  of  the  person  to 
properly  done,  he  will  be  entitled  Ho  an  whom  he  had  given  the  opinion,  there  having 
allowance  for  the  expense  incurred,  out  of  been  no  fraud  on  his  part. 
the  trust  estate  ;  Jones  v.  Stoekett,  2  Bland's  But  a  trustee,  who,  after  accepting  the 
Ch.  R.  409  ;  Greene  v.  Mumford,  4  R.  I.  R.  trust,  voluntarily  permits  his  co-trustee  to 
313;  but  the  advice  so  given,  will  not  pro-  take  the  entire  management  of  it,  and  the 
tect  the  trustee  from  the  consequences  of  a  possession  and  control  of  the  trust  property, 
failure  to  discharge  his  duty  properly,  for  if  is,  equally,  with  him,  liable  to  account ;  Roy- 
he  has  doubts,  or  there  was  room  for  them,  all  v.  McKenzie,  25  Ala.  R.  363  ;  Wayman 
he  should  apply  to  a  court  of  equity,  which  v.  Jones,  4  Md.  Ch.  Decs.  500  ;  McMurray 
will  always  give  him  directions  upon  which  v.  Montgomery,  2  Swan's  R.  374. 


OF    SETTLEMENTS    OF    PERSONAL    PROPERTY. 


371 


alteration  were  required,  rather  than  to  enact  that  a  deed  shall 
be  deemed  to  contain  clauses  which  in  fact  are  not  there. 


*In  order  to  provide  means  for  securing  trust  funds,  p^fjfTAT 
and  for  relieving  trustees  from  the  responsibility  of  ad-  ^  ^ 
ministering  them,  an  act  of  Parliament  has  recently  been  pass- 
ed,(?)  whereby  all  trustees,  executors,  administrators  or  other 
persons  having  in  their  hands(/:)  any  moneys  belonging  to  any 
trust  whatsoever,  or  the  major  part  of  them,(^)  may  pay  the  same, 
with  the  privity  of  the  accountant-general  of  the  Court  of  Chan- 
cery, into  the  Bank  of  England,  to  the  account  of  such  account- 
ant-general in  the  matter  of  the  trust,  in  trust  to  attend  the  orders 
of  the  court.  Bank  annuities,  East  India  and  South  Sea  stock, 
and  Government  and  Parliamentary  securities,  held  upon  trust, 
may  also  be  transferred  or  deposited  in  like  manner.  The  trust  is 
then  administered  by  the  court  upon  petition  in  a  summary  way, 
without  a  bill,  unless  the  court  direct  any  suit  to  be  institu- 
ted.(m).* 


(»■)   Stat.  10  &.  11  Viet,  e   96,  s.  1. 
(Ji-)   Buckley's  Trust,  17  Beav.  110. 


(/)   See  Stat.  12  &  13  Vict.  c.  74. 
(ra)  Stat.  10  &  11  Vict.  c.  96,  s.  2. 


1  Proceedings  in  courts  of  equity  are  origi- 
nated by  bill  or  by  petition.  But  where  new 
parties  are  to  be  brought  in,  not  necessary  to 
the  original  bill,  or  where  the  investigation 
may  involve  inquiries,  calculated  by  protract- 
ing the  cause,  to  delay  parties  not  interested 
in  such  new  inquiries,  the  proceeding  must 
be  by  bill.  A  petition  is  the  proper  course, 
when  no  other  persons  are  to  be  made  parties 
to  litigate  the  questions  presented  by  it,  than 
such  as  are,  or  ought  to  have  been,  parties  to 
the  original  bill;  Hayes  v.  Miles  et  al.,  9 
Gill  &  Johns.  R.  19.3  ;  Dyckman  et  al.  v. 
Kernochan  et  al.,  2  Paige's  Ch.  R.  26  ;  Duval 
V.  The  Farmers'  Bank  of  Maryland,  4  Gill  & 
Johns.  R.  292 ;  Maccubbin  v.  Cromwell,  2 
Har.  &  Gill's  R.  44.3  ;  Griggs  v.  Detroit,  &c., 
Co.,  10  Mich.  R.  J 17.  Thus,  it  is  the  proper 
course  to  pursue,  for  joining  a  party  who 
ought  to  have  been  joined  in  the  original  pro- 
ceedings ;  Williams  v.  Hull,  Ac,  7  B.  Mon. 
R.  295  ;  but  where  a  person  is  a  necessary 
party,  in  consequence  of  an  act  performed  by 
himself  after  the  commencement  of  the  suit, 
the  proper  proceeding  to  bring  him  into  court 


is  an  original  bill  in  the  nature  of  a  supple- 
mental bill ;  Winter  v.  Ludlow  (Ct.  Ct.  U.  S. 
for  the  East.  Dist.  of  Pa.),  3  Phila.  R.  464.  A 
lunatic  who  wishes  to  traverse  his  inquisition 
of  lunacy,  may  apply  by  petition ;  in  the 
matter  of  Christie,  5  Paige's  Ch.  R.  242  ; 
and  it  is  the  proper  course  also,  for  a  lunatic 
to  take,  who  wishes  to  compel  his  guardian 
to  account ;  Tally  v.  Tally,  2  Dev.  &  Bat.  Eq. 
R.  385;  and  so  of  an  application  for  a  re- 
hearing, whether  it  be  by  supplemental  bill, 
or  bill  of  review  ;  Hunt  v.  Smith  et  al.,  3 
Rich.  Eq.  R.  466  ;  Huison,  Admr.,  v.  Pickett, 
2  Hill's  Ch.  R.  353  ;  Wiser  v.  Blackly  et  al., 
2  Johns.  Ch.  R.  488  ;  Livingston  v.  Hubbs  et 
al.,  3  Id.  124;  Haskell  et  al.  v.  Raval,  1 
McCord's  Ch.  R.  28  ;  Colomb  et  al.  v.  The 
Br.  Bk.  at  Mobile,  18  Ala.  R.  454;  Emerson 
V.  Davies  et  al.,  1  Wood.  &  Min.  R.  21 ;  Jenk- 
ins V.  Eldredge,  3  Story's  R.  299;  Baker  v. 
Whiting  et  al.,  1  Id.  218.  Application  for 
maintenance  may  also  be  made  by  petition  ; 
In  the  matter  of  Bostwick,  4  Johns.  Ch.  R. 
102. 

In  South  Carolina,  by  statute,  any  equit- 


372  OF    PERSOiSrAL   ESTATE   GENERALLY. 

A  salutaiy  act  has  recently  been  passed  for  the  punishment  of 
fraudulent  trustees,  bankers,  directors,  and  public  officers. (n) 
More  recent  acts  empower  any  trustee,  executor,  or  administrator, 
by  petition  or  statement  to  be  signed  by  counsel,  to  apply  to  any 
judge  of  the  Court  of  Chancery,  for  his  opinion,  advice  or  direc- 
tion on  any  question  respecting  the  management  or  administration 
of  the  trust  property,  (o) 

In  some  marriage  settlements,  in  addition  to  the  settlement  actu- 
ally made,  a  covenant  is  inserted  for  the  settlement  of  all  such 
property  as  the  intended  wife  shall  become  entitled  to  during  the 
coverture  or  marriage.  It  sometimes  happens  that  at  the  time 
r*97n  ^^^^^  ^^^^^  covenant  *is  entered  into,  the  wife  is,  without 
being  aware  of  it,  entitled  to  other  property,  besides  that 
actually  settled.  In  such  a  case,  the  general  rule  is  that  the  prop- 
erty, to  which  she  is  then  entitled,  is  subject  to  the  covenant,  and 
ought  to  be  settled,  as  well  as  that  which  she  may  subsequently 
acquire.^))  But  as  the  question  is  entirely  one  of  intention,  if 
the  property  to  which  the  wife  is  entitled  appear  to  have  been 
purposely  omitted,  it  will  not  be  bound  by  such  a  covenant. (5-) 
If  the  covenant  to  settle  the  wife's  future  property  be  entered  into 
by  the  intended  husband  alone,  the  wife  will  not  be  bound  to 
settle  any  future  property  to  which  she  may  become  entitled  for 
her  separate  use.(r)  Occasionally  covenants  are  unadvisedly  en- 
tered into  by  the  intended  husband  to  settle  on  his  children,  or 
to  leave  to  them  by  his  will,  all  the  property  that  he  may  acquire 

(»)  Stat.  20  &  21  Vict.  c.  54. 

(o)   Stat.  22  &  2.3  Vict.  c.  35,  s.  30  :  23  &  24  Vict.  c.  38,  s.  9. 

(p)  Grafftey  v.  Humpage,  1  Beav.  46  ;  James  v.  Durant,  2  Beav.  177  ;  Blythe  v.  Gran- 
ville, 13  Sim.  190  ;  Ex  parte  Blake,  16  Beav.  463. 

(q)  Hoare  v.  Hornby,  2  You.  &  Coll.  N.  C.  121  ;  Otter  v.  Melvill,  2  De  Gex  &  Smale, 
257  ;  Wilton  v.  Colvin,  3  Drew.  617  ;  Archer  v.  Kelly,  1  Drew  &  S.  300. 

(r)  Douglas  V.  Congreve,  1  Keen,  410  ;  Travers  v.  Travers,  2  Beav.  179  :  Drury  v.  Scott, 
4  You.  &  Coll.  264 ;  Ramsden  v.  Smith,  2  Drew.  298 ;  Hammond  v.  Hammond,  19  Beav.  29. 
See,  also,  Butcher  v.  Butcher,  14  Beav.  222  ;  Cramer  v.  Moore,  3  Sma.  &  GifiF.  141 ;  Grey 
V.  Stuart,  2  GifiF.  398 ;  Brooks  v.  Keith,  1  Drew.  &  S.  462. 


able  claim,  under  the  value  of  £100,  maybe  acting  in  a  fiduciary  capacity,  are  usually 

brought  to  the  notice  of  the  court  by  peti-  commenced  by  filing  the  accounts,  or  by  pe- 

tion  ;  Skilling  v.  Jackson,  1  Hill's  Ch.  R.  185.  tition, — a  bill  to  account,  is  assumed  as  hav- 

In  Pennsylvania,   the  proceedings  in   the  ing  been  filed, 
matter  of  the  accounts  of  trustees;  and  others 


OF    SETTLEMENTS   OF   PERSONAL   PROPERTY.  373 

during  tlie  coverture,  or  all  his  property  generally. (s)  So  a  father 
may  covenant,  on  the  marriage  of  his  daughter,  to  leave  her  as 
great  a  share  in  his  property  as  to  any  of  his  other  children.(<) 
These  covenants  will  he  enforced  in  equity ;  but  from  their  vague 
and  uncertain  character,  they  are  likely  to  lead  to  much  litigation. 
A  covenant  to  settle  property  of  a  given  value,  when  no  time  is 
limited  for  its  performance,  creates  no  lien  on  any  of  the  property 
*of  the  coveuantor.(!<)  And  it  appears  to  be  now  settled,  ^^079-1 
contrary  to  what  was  before  supposed  to  be  the  law,  that  '-  -• 
no  lien  is  created  whether  a  time  for  the  performance  of  the 
covenant  be  specified  or  not.(:c) 

Marriage,   as   we   have  seeu,(j/)  is  a  valuable  consideration.' 

(s)  Lewis  V.  Madocks,  17  Ves.  48  ;  Needham  v.  Smith,  4-Russ.  318  ;  Needhatn  v.  Kirliinan, 
4  Barn.  &  Aid.  531,  E.  C.  L.  R.  vol.  6  ;  Hardey  v.  Green,  12  Beav.  182. 

{t)  Willis  V.  Black,  4  Russ.  170  ;  Clegg  v.  Clegg,  2  Russ.  &  My.  570  ;  Eardley  v.  Owen,  10 
Beav.  572;  Jones  v.  How,  7  Hare,  267;  9  C.  B.  1,  E.  C.  L.  R.  vol.  67. 

(u)  Freemoult  v.  Dedire,  1  P.  Wms.  429  ;  Berrington  v.  Evans,  3  You.  &  Coll.  384. 

(x)  Mornington  v:  Keane,  2  De  Gex  &  Jones,  292,  explaining  Roundel!  v.  Brearey,  2 
Vern.  482,  and  questioning  Wellesley  v.  Wellesley,  4  My.  &  Cr.  561,  581. 

(y)   Ante,  p.  70. 


1  Not  only  is  marriage  regarded  as  a  valu-  legal  instrument,  extinguished,  yet  the  agree- 
able  consideration  ;  Magniac  v.  Thompson,  1  ment  was  upheld,  in  accordance  with  the  in- 
Baldw.  R.  344,  affirmed,  7  Pet.  R.  348  ;  Car-  tention  of  the  parties  ;  Baldwin  v.  Carter,  17 
roll  V.  Lee,  Admr.,  3  Gill  &  Johns.  R.  504;  Conn.  R.  201;  but  a  verbal  agreement, 
Bray  v.  Dudgeon,  6  Munf.  R.  132  ;  Smith  v.  though  founded  upon  marriage,  will  not  be 
Smith's  Admr.,  Id.  581  ;  Hutcher  v.  Robert-  valid  ;  Andrews  &  Bros.  v.  Jones  et  al.,  10 
son,  Exr.,  4  Strobh.  Eq.  R  179  ;  De  Barante  Ala.  R.  400  ;  Montgomery  v.  Henderson,  3 
V.  Gott  et  al.,  6  Barb.  S.  R.  492;  Dunn  v.  Jones's  Eq.  R.  113  ;  nor  will  an  agreement  in 
Thorp,  Admr.,  Ac,  4  Ired.  Eq.  R.  7;  Free-  consideration  of  marriage  be  supported,  un- 
man et  al.  V.  Hill,  Exr.,  et  al.,  1  Dev.  &  Bat.  less  the  circumstances  of  the  parties  are  such 
R.  389  ;  Trenton  Banking  Co.  v.  Woodruff  et  as  to  warrant  the  making  of  a  marriage  set- 
al.,  1  Green's  C.  R.  117;  Armfield  v.  Arm-  tlement ;  thus,  in  the  case  of  Keith  v. 
field,  1  Freeman's  C.  R.  311;  Cummins  v.  Woombwell,  8  Pick.  R.  213,  which  was  an 
Boston,  25  Geo.  R.  277;  Cloud  v.  Dupree,  28  agreement  made  between  two  very  poor  per- 
Id.  170  ;  Albert  v.  Winn,  5  Md.  R.  66  ;  but  sons  in  anticipation  of  marriage,  C.  J.  Parker 
it  is  looked  upon  as  the  highest  of  considera-  says,  "  That  two  very  poor  people,  depending 
tions;  Tunno  et  al.  v.  Trezevant  et  al.,  2  upon  their  labor  for  their  living,  should,  upon 
Desauss.  R.  267;  and  equity  will  uphold  an  a  contemplated  marriage,  enter  into  an  agree- 
agreement  made  in  consideration  of  marriage,  ment,  the  effect  of  which  would  be  that  the 
in  cases  where  by  law,  no  remedy  could  be  labor  of  one  should  go  to  the  support  of  both, 
f?ought  ;  as,  where  one  in  contemplation  of  and  that  the  labor  of  the  other  should  be  to 
marriage,  gave  a  bond  to  his  intended  wife,  the  profit  of  that  one  only,  would  be  a  very 
that  he  would  allow  her  to  hold  all  her  perso-  unequal  bargain,  and  hardly  sustainable  in  a 
nal  property  to  her  sole  and  separate  use;  court  of  equity.  It  would  be  without  consid- 
though,  by  the  marriage,  such  bond  was,  as  a  eration,  and  as  it  respects  future  creditors 


374 


OF    PERSONAL   ESTATE   GENERALLY. 


Every  settlement,  therefore,   made  by  parties  of  full  age,  pre- 
viously to  aucl  in  consideration  of  marriage,  or  made  subsequently 


even,  would  be  fraudulent,  for  the  visible 
means  of  the  husband  in  such  case,  upon 
which  he  would  gain  his  daily  credit,  would 
be  continually  diminished,  by  a  secret,  invisi- 
ble consumption,  which  would  keep  him  down, 
and  render  him  wholly  unable  to  pay  his 
debts." 

Where,  however,  the  contract  of  marriage 
is  valid,  it  is  interpreted  like  an  ordinary 
contract  of  sale  ;  if  the  contract  is  executed, 
the  wife  is  regarded  as  a  purchaser,  and  if 
executory,  as  a  creditor  ;  Magniac  v.  Thomp- 
son, 1  Baldw.  R.  ?,U,  affirmed,  7  Pet.  R.  348  ; 
Armfield  v.  Armfield,  1  Freem.  C.  R.  311; 
but  courts  of  law  will  not  estimate  the  value 
of  the  marriage,  iiv  comparison  with  the  set- 
tlement, though  equity  may  do  it ;  Magniac 
V.  Thompson,  1  Baldw.  R.  344,  affirmed,  7 
Pet.  R.  348  ;  so,  a  contract  based  upon  the 
consideration  of  marriage,  will  be  valid,  even 
though  the  husband  was  indebted  at  the 
time ;  Magniac  v.  Thompson,  1  Baldw.  R. 
344  ;  Fones  v.  Rice  et  al.,  9  Gratt.  R.  568  ; 
Rivers  v.  Thayer,  7  Rich.  Eq.  R.  136  ;  just  as 
one  may  sell  his  property  for  a  good  consider- 
ation, even  though  indebted  ;  Wheaton  v. 
Sexton's  Lessee,  i  Wheat.  R.  503  ;  but,  of 
course,  existing  liens  will  not  be  defeated  by 
such  sale  or  settlement  ;  Armfield  v.  Armfield, 
1  Freem.  C.  R.  311  ;  Byrod's  Ap.,  31  Pa.  St. 
R.  241  ;  and  to  make  the  contract  void  for 
fraud  against  creditors,  both  parties  must 
concur  in  the  fraud  ;  Magniac  v.  Thompson, 
1  Baldw.  R.  344  ;  Andrews  &  Bros.  v.  Jones 
etal.,  10  Ala.  R.  400  ;  Marshall  v.  Morris,  16 
Geo.  R.  368  ;  and  generally,  almost  any  agree- 
ment which  is  reasonable,  and  made  bona  fide 
before  marriage  to  secure  property  to  the  wife, 
will  be  enforced  in  equity  ;  Stilley  v.  Folger 
et  al.,  14  0.  R.  649  ;  Brooks  et  al.  v.  Dent, 
Admr.,  et  al.,  1  Md.  C.  Decs.  523;  Wood  v. 
Savage,  Walk.  C.  R.  471  ;  Miller  y.  Goodwin, 
8  Gray's  R.  542  ;  Robson  v.  Jones,  27  Geo.  R. 
266  ;  Snyder  v.  Webb,  3  Cal.  R.  83  ;  Page  v. 
Kendrick,  10  Mich.  R.  300  ;  but  a  post-nup- 
tial settlement,  made  in  pursuance  of  a  parol 
agreement  made  before  marriage,  is  void  as 
to  antecedent  creditors  ;  Reade  v.  Livingston, 
3  Johns.  C.  R.  481 ;  Izard  v.  Izard,  1  Bailey's 


C.  R.  288  ;  Davidson  v.  Graves,  Riley's  C.  R. 
219;  Borstt.-.  Covey  etal.,  16  Barb.  S.  R.  136; 
it  is  otherwise,  however,  in  regard  to  a  post- 
nuptial settlement,  made  in  accordance  with 
a  written  ante-nuptial  agreement  ;  Reade, 
Admr.,  v.  Livingston  et  al.,  3  Johns.  C.  R. 
481  ;  Woodward  v.  Woodward,  5  Sneed's  R. 
49  ;  Kinnard  v.  Daniel,  13  B.  Mon.  R.  496. 
Where  post-nuptial  settlements  are  made 
without  consideration,  they  will  be  governed 
by  the  same  rules  as  voluntary  settlements  ; 
thus,  they  are  regarded  as  valid,  if  made  by 
one  not  indebted  at  the  time  ;  Sexton  v. 
Wheaton,  8  Wheat.  R.  229  ;  Picquet  t).  Swan, 
4  Mass.  R.  443  ;  Simpson  v.  Graves,  Riley's 
C.  R  232;  United  States  Bank  v.  Funis, 
Wright's  R.  605  ;  Beach  v.  White,  AValker's 
C.  R.  495  ;  Barker  v.  Koneman,  13  Cal.  R.  9  ; 
Reynolds  v.  Lansford,  16  Texas  R.  286  ; 
Townsend  v.  Maynard,  45  Pa.  St.  R.  198  ; 
Larkin  v.  McMullin,  49  Id.  29  :  and  even 
though  he  be  indebted,  provided  he  has  suffi- 
cient property  in  addition  to  that  settled,  to 
pay  his  debts,  or  those  debts  are  amply  se- 
cured by  the  covenants  of  the  settlement  ; 
Reade,  Admr.,  v.  Livingston  et  al.,  3  Johns. 
C.  R.  481  ;  Picquet  v.  Swan,  4  Mass.  R.  443  ; 
Thompson  v.  Dougherty,  12  Serg.  &  Raw. 
R.  448  ;  Ridgway  v.  Underwood,  4  Wash.  C. 
C.  R.  137  ;  Hopkirk  v.  Randolph,  Admr.,  Ac, 
2  Brockenb.  R.  130  ;  Pinney  et  al.  v.  Fellows, 
15  Vt.  R.  536  ;  Rundle  v.  Murgatroyd,  4  Dal. 
R.  304  ;  or  he  convej's  nothing  more  than 
what  the  equity  of  the  wife  would  entitle 
her  to  ;  Poindexter  v.  Jeffries,  15  Gratt.  R. 
363  ;  Coates  v.  Gerlach,  44  Pa.  St.  R.  43 ; 
Butler  V.  Rickets,  11  Iowa  R.  107  ;  or  where 
the  settlement  merely  returns  to  the  wife, 
property  equivalent  to  that  of  hers,  which  had 
been  appropriated  by  the  husband  ;  Wiley  v. 
Gray,  36  Missi.  R.  510  ;  Harris  v.  Brown,  30 
Ala.  R.  401  ;  Stockett  v.  Holliday,  9  Md.  R. 
480  ;  William  &  Mary  College  v.  Powell,  12 
Gratt.  R.  372  ;  Tripner  v.  Abrahams,  47  Pa. 
St.  R.  227  ;  such  a  deed,  however,  will  be 
only  void  as  to  antecedent,  and  not  as  to  sub- 
sequent creditors ;  Hind's  Lessee  v.  Long- 
worthy,  11  Wheat.  R.  199;  Reade,  Admr.,  v. 
Livingston  et  al.,  3  Johns.  C  R.  481 ;  Bennett 


OF   SETTLEMENTS   OF   PERSONAL   PROPERTY. 


375 


to  marriage  in  pursuance  of  written  article8,(2)  stands  on  tlie  foot- 
er:) Stat.  29  Car.  II,  a,  3,  s.  4.     See  ante,  p.  74. 


V.  The  Bedford  Bank,  11  Mass.  R.  421  ; 
Ridgway  v.  Underwood,  4  Wash.  C.  C.  R. 
137  ;  Davis  v.  Herrick,  37  Maine  R.  397  ;  but 
where  .such  a  conveyance  was  made  at  the 
commenceraent  of  a  new  and  hazardous  busi- 
ness, it  was  held  void  as  against  debts  con- 
tracted in  that  business  ;  Mullen  v.  Wilson  et 
al.,  44  Pa.  St.  R.  413.  And  see  Snyder  v. 
Christ.,  39  Id.  499. 

In  the  case  of  Salmon  v.  Bennett,  1  Conn. 
R.  525,  C.  J.  Swift  remarks,  "  Where  there 
is  no  actual  fraudulent  intent,  and  a  volun- 
tary conveyance  is  made  to  a  child  in  consid- 
eration of  love  and  affection,  if  the  grantor  is 
in  prosperous  circumstances,  unembarassed, 
and  not  considerably  indebted,  and  the  gift 
is  a  reasonable  provision  for  the  child,  accord- 
ing to  his  state  and  condition  in  life,  compre- 
hending but  a  small  portion  of  his  estate, 
leaving  ample  funds  unincumbered  for  the 
payment  of  the  grantor's  debt  ;  then  such 
a  conveyance  will  be  valid  against  creditors 
existing  at  the  time." 

A  voluntary  settlement  is  also  void,  as  to  a 
subsequent  purchaser,  with  notice  ;  Sterry  v. 
Arden  et  al.,  1  Johns.  C.  R.  261,  aflBrmed, 
12  Johns.  R.  536  ;  Cathcart  et  al.  v.  Robin- 
son, 5  Pet.  R.  264 ;  in  which  last  case,  C. 
J.  Marshall  uses  the  following  language  : 
"  There  is  some  contrariety  and  some  ambi- 
guity in  the  old  cases  on  this  subject  ;  but 
this  court  conceives  that  the  modern  decis- 
ions, establish  the  absolute  conclusiveness  of  a 
subsequent  sale,  to  fix  fraud  upon  a  family 
settlement,  fraud  not  to  be  repelled  by  any 
circumstances  whatever."  And  it  does  not 
matter  whether  the  sale  be  from  the  grantor  or 
grantee  under  the  voluntary  deed,  save  that 
if  from  the  latter,  it  must  be  previous  to  a  sale 
by  the  grantor,  or  before  it  is  taken  in  execu- 
tion by  his  creditors  ;  Anderson  et  al.  v.  Rob- 
erts etal.,  18  John.s.R.  616  ;  other  cases,  how- 
ever, hold  that  a  voluntary  settlement,  though 
void  as  to  creditors,  is  good  as  to  the  grantor 
and  all  claiming  under  him  ;  Thompson  v. 
Dougherty,  12  Serg.  k  Raw.  R.  448  ;  Church 
V.  Church,  4  Yeat.  R.  280  ;  Shunkv.  Endress, 
3  Wat.  k  Serg.  R.  253  ;  Worrall's  Accounts, 
5  Id.  113  J  Huey's  Ap.,  29  Pa.  St.  R.  219  ;  but 


there  is  no  question,  that  a  voluntary  settle- 
ment will  be  good  as  to  existing  creditors,  or 
subsequent  purchasers,  by  matter  ex  post 
facto ;  as  if  one  gains  credit  by  such  settle- 
ment, so  as  to  found  a  consideration  for  a 
marriage  presently  had  ;  Sterry  v.  Arden  et 
al.,  1  Johns.  C.  R.,  261;  affirmed,  12  Johns.  R. 
636  ;  Huston's  Admr.  v.  Cantril  et  al.,  11 
Leigh's  R.  137  ;  Hopkirk  v.  Randolph,  Admr., 
2  Brockenb.  R.  130.  And  a  post-nuptial  set- 
tlement for  a  valuable  consideration,  is  good, 
as  an  ordinary  transfer  of  property  ;  Barron 
V.  Barron  et  al.,  24  Vt.  R.  376  ;  Pinney  et 
al.  V.  Fellows,  15  Id.  536  ;  Brooks  et  al.  v- 
Dent,  Admr.,  et  al.,  1  Md.  C.  Decs.  623  ;  Liv- 
ingston V.  Livingston,  2  Johns.  C.  R.  537  j  Ry- 
an, Admr.,  v.  Bull  et  al.,  3  Strobh.  Eq.  R.  86  ; 
U.  S.  Bank  et  al.  v.' Brown  et  al.,  2  Hill's  C. 
R.  562  ;  Keith  v.  Wombwell,  8  Pick.  R.  213. 
It  is  not  absolutely  indispensable  that  there 
should  be  a  trustee  to  a  marriage  settlement  ; 
Carroll  v.  Lee,  Admr.,  3  Gill  k  Johns.  R.  604  ; 
Exr.  of  Allen  v.  Rumph  et  al.,  2  Hill's  C.  R. 
4;  Crostwaight,  ifec,  v.  Hutchinson,  kc,  2 
Bibb's  R.  407  ;  Barron  v.  Barron  et  al.,  24 
Vt.  R.  376 ;  for,  if  no  trustee  is  named,  the 
husband  will  take  that  office  ;  Hamilton  v. 
Bishop  et  al.,  8  Yerg.  R.  33  ;  Picquet  v.  Swan, 
4  Mass.  R.  443  ;   Griffith's  Admr.  v.  Griffith, 

6  B.  Mon.  R.  118;  Baldwin  v.  Carter,  17 
Conn.  R.  201 ;  Kenley  v.  Kenley,  2  How. 
(Missi.)  R.  761 ;  Parks  v.  Noble,  9  Rich.  Eq. 
R.  86  ;  Resor  v.  Resor,  9  Ind.  R.  347  ;  Riley 
V.  Riley,  25  Conn.  R.  164 ;  but,  agreements 
entered  into  between  husband  and  wife  during 
coverture  are  void  at  law  ;  AVallingsford  v. 
Allen,  10  Pet.  R.  683  ;  Sheppard  v.  Sheppard, 

7  Johns.  C.  R.  67 ;  Harkins  et  al.  v.  Coulter 
et  al.,  2  Port.  R.  463;  Dufiy  v.  The  Insurance 
Co.,  8  Wat.  k  Serg.  R.  413 ;  Wood  v.  Warden, 
Admr.,  Ac,  20  0.  R.  621 ;  Hutton  v.  Huttou's 
Admr.,  3  Pa.  St.  R.  100;  Johnston  v.  John- 
ston, 1  Grant's  Cas.  468  ;  Bear  v.  Bear,  33 
Pa.  St.  R.  525 ;  though  they  are  good  in 
equity,  if  upon  a  valuable  consideration ; 
Wallingsford  v.  Allen,  10  Pet.  R.  583  ;  Shep- 
pard V.  Sheppard,  7  Johns.  C.  R.  67  ;  Ilarkins 
et  al.  V.  Coulter  et  al.,  2  Port.  R.  463  ;  McKen- 
nan  v.  Phillips,  6  Whart.  R.  571  ;  Trenton 


376  OF   PERSONAL   ESTATE   GENERALLY. 

ing  of  a  purchase,  and  has  equal  vahdity.  But  a  voluntary  set- 
tlement is  liable  to  be  defeated  bj'  the  creditors  of  the  settlor,  if 
he  was  so  much  indebted  at  the  time  as  to  bring  the  settlement 
within  the  provisions  of  the  statute  of  the  13th  of  Elizabeth(a) 
already  noticed,(6)  by  which  the  alienation  of  goods  and  chattels 
made  for  the  purpose  of  delaying,  hindering,  or  defrauding  cred- 
itors, is  rendered  void  as  against  them.  For  although  by  the 
phrase  "goods  and  chattels"  was  intended  only  such  personal 
property  as  could  be  taken  by  the  sheriff  under  an  execution  on 
a  judgment,(c)  yet  as  almost  all  kinds  of  personal  property  may 
now  be  taken  in  execution, (</)  or  charged  with  the  payment  of 
judgment  debts,(e)  all  such  property  is  now  within  the  compass 
of  the  statute. (/)*  The  voluntary  assignment  of  goods  or  chat- 
tels, or  delivery,  or  making  over  of  bills,  bonds,  notes,  or  other 

(a)  Stat.  13  Eliz.  c.  5  ;  Skarf  v.  Soulby,  1  Mac.  &  Gord.  364. 

(b)  Ante,  p.  45. 

(c)  Sims  V.  Thomas,  2  Adol.  &  Ell.  536,  E.  C.  L.  R.  vol.  29.     See  a7Ue,  p.  48. 

(d)  Stat.  1  &  2  Vict.  c.  110,  s.  12.     See  ante,  p.  113. 

{e)  Stat.  1  &  2  Vict.  c.  110,  8.  14;  3  &  4  Vict.  c.  82,  s.  1.     Ante,  pp.  113,  188,  213. 
(/)  See  Edwards  v.  Cooper,  11  Q.  B.  33,  E.  C.  L.  R.  vol.  63  ;  Barrack  v.  McCulIoch,  3 
Kay  &  John.  110  ;  Jenkyn  v.  Vaughan,  3  Drew.  419. 


Banking  Co.  v.  Woodruff  et  al.,  1  Green's  C.  agreement  was  consummated  ;  see  Hutton  ■;;. 
R.  117  ;  Shirley  v.  Shirley  et  al.,  9  Paige'.s  C.  Button's  Admr.,  3  Pa.  St.  R.  100. 
R.  363  ;  Griffith's  Admr.  v.  Griffith,  5  B.  Mon.  A  contract  by  a  husband  during  marriage, 
R.  118  ;  Bridges  v.  Wood,  4  Dana's  R.  610  ;  while  living  in  amity,  or  before  marriage,  to 
Smith  V.  Smith's  Admr.,  6  Munf.  R.  581  ;  pay  an  allowance  for  the  support  of  his  wife 
Duffy  V.  The  Insurance  Co.,  8  Wat.  &  Serg.  in  case  of  a  future  separation,  is  void  as 
R.  413;  Wood  t;.  Warden,  Admr.,  20  0.  R.  against  public  policy;  but  when  made  in 
■621-  Stilesf.  Fleming,  E.xr.,  et  al.,  1  Dev.  Eq.  contemplation  of  the  continuance  of  a  pre- 
R.  185  ;  Ex  parte  Wells,  3  Desauss.  R.  158  ;  vious  separation,  or  of  disagreements  which 
Button  t^.  Button's  Admr.,  3  Pa.  St.  R.  100  ;  have  already  taken  place,  is  good  ;  Gaines  v. 
Wells  V.  Wells,  35  Missi.  R.  638 ;  Deming  v.  Poor,  3  Met.  (Ky.)  R.  503. 
Williams,  26  Conn.  R.  226  ;  Simons  v.  McEl-  i  But  in  Pennsylvania,  lands  are  considered 
wain,  26  Barb.  R.  420  ;  but  an  agreement  as  chattels  for  the  payment  of  debts  ;  credit- 
between  husband  and  wife  to  live  separate  ors  have  a  legal  right  to  take  the  property  of 
and  apart  from  each  other,  is  good  neither  at  their  debtors  in  execution,  and  any  convey- 
law  nor  in  equity,  unle.ss  through  the  inter-  ance  made  to  defeat  them  is  void  ;  Reichart 
vention  of  a  trustee  ;  McKennan  v.  Phillips,  v.  Castator,  5  Bin.  R.  112  ;  and  in  case  of  in- 
6  Vt.  R.  571 ;  Simpson  v.  Simpson,  4  Dana's  solvency,  the  a.«signees  have  power  to  recover 
R.  141;  Carson  v.  Murray  et  al.,  3  Paige's  and  dispose  of  all  such  real  or  personal  estate, 
R.  483  ;  Reed  v.  Beazley,  1  Blackf.  R.  97  ;  as  the  insolvent  shall  have  (prior  to  the  as- 
Rogers  v.  Rogers,  4  Paige's  R.  516  ;  Champlin  signment)  conveyed  or  transferred  with  intent 
V.  Champlin  et  al.,  1  Boff.  C.  R.  55  ;  the  con-  to  defraud  his  creditors  ;  Purd.  Dig.  (1861) 
trary  has,    however,  been  held,  where  the  pp.  542,  543. 


OF    SETTLEMENTS   OF    PERSONAL   PROPERTY.  377 

*seciirities,  or  the  voluntary  transfer  of  any  debts  made  p-^^^^on 
by  a  person  being  at  the  time  insolvent,(^)  is  also  void  in  ■-  -^ 
the  event  of  his  bankruptcy. (A)  This  provision  appears  to  em- 
brace all  personal  estate  capable  of  assignment  or  transfer ;(>')  but 
it  does  not  extend  to  a  gift  of  mouey.(A-) 

Although  a  voluntary  settlement  may  thus  be  defeated  by  cred- 
itors, yet,  when  once  completed,  it  is  binding  on  the  settlor,  who 
cannot,  by  any  means,  undo  it.(^)  Thus,  in  one  case,(m)  a  maiden 
lady  not  immediately  contemplating  marriage,  but  thinking  such 
an  event  possible,  transferred  a  sum  of  stock  into  the  names  of 
trustees  in  trust  for  herself  until  she  should  marry,  and,  after  her 
marriage,  in  trust  for  her  separate  use  for  her  life,  free  from  the 
control  of  any  person  or  persons  with  whom  she  might  inter- 
marry, and  after  her  decease,  upon  trusts  for  the  benefit  of  any 
such  husband,  and  her  child,  or  children  by  any  husband  or  hus- 
bands. She  afterwards,  being  still  unmarried,  filed  a  bill  in 
Chancery,  praying  that  the  settlement  might  be  delivered  up  to 
her  to  be  cancelled,  and  that  the  stock  might  be  ordered  to  be 
retransferred  by  the  trustees.  But  the  court  held  she  was  bound 
by  the  settlement  she  had  made,  and  was  not  entitled  to  any  as- 
sistance to  release  her  from  it.^ 

If,  however,  the  object  of  the  settlor  is  merely  his  own  benefit, 
or  convenience,  the  settlement  will  be  revocable  '''by  him  r-^cy^.-, 
at  his  pleasure.  Thus  where  a  man,  without  any  com-  L  "  J 
munication  with  his  creditors,  puts  property  into  the  hands  of 
trustees  for  the  purpose  of  paying  his  debts,  his  object  is  said  to 
be,  not  to  benefit  his  creditors,  but  to  benefit  himself  by  the  pay- 

(g)   See  Cutten  v.  Sanger,  2  You.  &  Jerv.  459. 

{/i)  Stat.  12  &  13  Vict.  c.  106,  s.  12(5,  repealing  stat.  6  Geo.  IV,  c.  16,  s.  7-3,  to  the  same 
effect. 

(i)  Brown  v.  Bellari.s,  5  Mad.  53. 

(/-)  Ex  parte  Shortland,  7  Ves.  88;  Kensington  v.  Chandler,  2  Mau.  &  Selw.  36;  Ex 
parte  Skerratt,  2  Rose,  384. 

(/)  Ellison  V  Ellison,  6  Ves.  656  ;  Edwards  v.  Jones,  1  My.  &  Craig,  226  ;  Newton  V. 
Askew,  11  Beav.  145;  Kekewich  v.  Manning,  1  De  Gex,  Mac.  &  Uord.  176;  Bentley  v. 
Mackay,  15  Beav.  12;  Bridget.  Bridge,  16  Beav.  315. 

(m)  Bill  V.  Cureton,  2  My.  &  Keen,  403.  See,  also,  Petre  v.  Espiana.sse,  2  My.  A  Keen, 
496;  McDonnell  i;.  Hesilrige,  16  Beav.  346;  Donaldson  v.  Donaldson,  1  Kay,  711. 


'  See  a7ite,  p.  272,  note  1. 


378  OF  PERSONAL  ESTATE  GENERALLY. 

meut  of  his  dcbts.(??)  lie  may  accordingly  revoke  the  trust  thus 
created,(o)  so  long  as  the  creditors  remain  in  ignorance  of  it.(p) 
This  rule,  however,  though  well  established,  seems  to  attribute 
to  debtors  a  somewhat  light  estimation  of  the  claims  of  their 
creditors;  and  there  appears  to  be  no  disposition  in  the  courts  to 
extend  it.{q) 

The  statute  of  Elizabcth,(r)  by  which  voluntary  settlements  of 
lauds  and  other  hereditaments  are  void  as  against  subsequent 
purchasers  for  valuable  consideration,  though  it  extends  to  chat- 
tels real,{.s)  does  not  apply  to  purely  personal  estate.(/)^  A  volun- 
tary settlement  of  personal  estate  cannot  therefore  be  defeated 
by  a  subsequent  sale  of  the  property  by  the  settlor. 

Settlements  of  any  definite  and  certain  principal  sum  of  money, 
or  share  in  the  funds,  or  Bank,  East  India,  or  South  Sea  stock,  or 
in  the  stock  or  funds  of  any  other  company  or  corporation,  are 

(»)  Per  Sir  C.  Pepys,  M.  R.  2  My.  &  Keen,  511  ;  cited  by  Wigram,  V.  C,  in  Hughes  v. 
Stubbs,  1  Hare,  479. 

(o)  Garrard  v.  Lord  Lauderdale,  3  Sim.  1  ;  Acton  v.  Woodgate,  2  My.  &  Keen,  492  ; 
Ravenshaw  v.  Hollier,  7  Sim.  3  ;  Law  v.  Bagwell,  4  Dru.  &  Warren,  398  ;  Smith  v.  Keating, 
6  C.  B.  136,  E.  C.  L.  R.  vol.  60  ;  Driver  v.  Maudesley,  16  Sim.  511. 

{]))  Browne  v.  Cavendish,  1  Jones  &  Lat.  606,  635  ;  Griffith  v.  Ricketts,  7  Hare.  299,  307  ; 
Mackinnon  v.  Stewart,  1  Sim.  N.  C.  76,  89,  90  ;  Harland  v.  Binks,  15  Q.  B.  713,  E.  C.  L.  R. 
vol.  69  ;  Smith  v.  Hurst,  10  Hare,  30.  But  see  Cornthwaite  v.  Frith,  4  De  Gex  &  Smale, 
552. 

{q)  See  Wilding  r.  Richards,  1  CoU;  661  ;  Siramonds  v.  Palles,  2  Jones  &  Lat.  489  ;  Kir- 
wan  V.  Daniel,  5  Hare,  493,  499-501. 

(r)  Stat.  27  Eliz.  c.  4;  Principles  of  the  Law  of  Real  Property,  56,  1st  ed.  ;  59,  2d  ed.  ; 
62,  3d  &  4th  eds.  ;  67.  5th  ed.  ;  71,  6th  ed. 

(5)  Co.  Litt.  3  b ;  6  Rep.  72. 

(/)  2  My.  &  Keen.  512. 


1  On  the  subject  of  voluntary  settlements  Leigh's  R.  157;  Bentley  et  al.  v.  Harris, 
of  personal  estate,  and  that  their  validity  or  Admr..  2  Gratt.  R.  357  ;  Beckham  v.  Secrest, 
invalidity  is,  in  this  country,  as  a  general  2  Rich.  Eq.  R  54;  Worthington  et  al.  v. 
thing,  determined  by  the  same  rules  which  Shipley,  5  Gill's  R.  445  ;  Fleming  v.  Town- 
regulate  such  settlements  of  land,  see  Bayard  send,  6  Geo.  R.  103  ;  Wilson  v.  Buchanan,  7 
et  al.  V.  Hoffman  et  al.,  4  Johns  Oh.  R.  450  ;  Gratt.  R.  3-34  ;  Smith  v.  Stern,  18  Pa.  St.  R. 
Bank  U.  S.  et  al.  v.  Huth,  4  B.  Mon.  R.  444 ;  360  ;  McVicker  v.  May,  3  Pa.  St.  R.  227  ; 
Bohn  V.  Headley,  7  Har.  &  Johns.  R.  257;  Penrod  v.  Morrison,  Admr.,  2  Pa.  R.  126; 
Toumin  v.  Buchanan's  Exr.,  1  Stew.  R.  67;  Clemens  v.  Davis,  7  Pa.  St.  R.  264;  Streeper 
Backhouse's  Admr.  v.  Jett's  Admr.,  1  Brock-  v.  Eckert,  2  Wh.  R.  302 ;  Stark  v.  Ward,  3 
enb.  R.  .500  ;  Thayer  v  Thayer  et  al.,  14  Vt.  Pa.  St.  R.  328  ;  Forsyth  v.  Matthews,  12  Pa. 
R.  107  ;  Davis  v.  Payne's  Admr.,  4  Rand.  R.  St.  R.  100. 
.332;    Huston,   Admr.,  v.  Cantrill   et  al.,   11 


OF   JOINT    OWNERSHIP   AND   JOINT    LIABILITY.  379 

HOW  liable  to  an  ad  valorem  *cluty  of  one-fourth  per  cent.  |-*97c-| 
or  five  shillings  per  hundred  pounds,  on  the  amount  of  ^ 
the  money,  or  the  value  of  the  stock  or  share  settled,  according 
to  the  table  contained  in  the  last  Stamp  Act,{u)  with  a  progres- 
sive duty  of  ten  shillings  for  every  entire  quantity  of  1080  words 
beyond  the  first  1080. 

By  a  recent  act  of  Parliament(x)  provision  has  been  made  for 
charging  certain  duties  on  the  succession  to  property  upon  the 
death  of  any  person  dying  after  the  19th  of  May,  1853.  These 
duties  are  at  the  same  rates  as  the  legacy  duty,  of  which  an  ac- 
count will  be  given  in  the  chapter  on  Wills,  increasing  in  propor- 
tion to  the  distance  in  consanguinity  between  the  predecessor, 
from  whom  the  interest  succeeded  to  is  derived,  and  the  suc- 
cessor.^ 


*CHAPTER  II.  [*276] 

OF    JOINT    OWNERSHIP    AND   JOINT    LIABILITY, 

There  may  be  a  joint  ownership  of  any  kind  of  personal  prop- 
erty in  the  same  manner  as  there  may  be  a  joint  tenancy  of  real 
estate  ;{a)  and  the  four  unities  of  possession,  interest,  title,  and  time, 
Avhich  characterize  a  joint  tenancy  of  real  estate,  apply  also  to  a 
joint  ownership  of  chattels.  But  as  no  estates  can  exist  in  per- 
sonal property,  the  distinctions  which  hold  with  respect  to  joint 

{//)  Stat.  13  &  14  Vict.  c.  97.  A  sum  secured  by  a  policy  of  life  sissurance,  has  been 
held  not  to  be  a  definite  and  certain  sum  within  the  meaning  of  this  act;  Sanville  v.  The 
Commissioners  of  Inland  Revenue,  10  E.xeh.  159. 

(x)  Stat.  16  &  17  Vict.  c.  51. 

(a)  See  Principles  of  the  Law  of  Real  Property,  p.  99,  1st  ed.  ;  104,  2d  ed.  ;  109,  .3d  & 
4th  eds.  ;  114,  5th  ed.  ;   120,  6th  ed. 

'  A  provision  similar  to  that  referred  to  in  of  personal   property.     Sec.   126,   and   some 

the  text,  is  contained  in  the  Internal  Revenue  subsequent  sees,  of  the  same  act,  refer  to  the 

Law,  being  Act  of  Congress  of  March  3,  1865.  succession  of  real  estate,  and  the  amount  and 

The  124th  and  125th  sees,  of  said  act,  relate  to  manner  of  levying  tax  thereon, 
the  tux  upon  legacies  and  distributive  shares 


380 


OF   PERSONAL   ESTATE   GENERALLY. 


estates  for  life,  in  tail,  or  in  fee,  tlo  not  occnr  in  a  joint  owner- 
ship of  personalty.  If  personal  property,  wliotlicr  in  possession 
or  in  action,  be  given  to  A.  and  B.  simply,  tliey  will  be  joint 
owners,  having  equal  rights  as  between  themselves,  during  the 
joint  ownership,  and  being,  with  respect  to  all  other  persons  than 
themselves,  in  the  position  of  one  single  owner.  Hence  it  fol- 
lows, that  if  a  bond  or  covenant  be  given  or  made  to  two  or  more 
jointly,  they  must  all  join  in -suing  upon  it;(6)  and  a  release  by 
one  of  them  to  the  obligor  is  sufficient  to  bar  them  all.(c)^    As  a 

(/;)   Slingby's  Case,   5  Rep.  18  b ;  Petrie  v.  Bury,  3  Barn.  &  Cress.  353,  E.  0.  L.  R.  vol. 
10;  1  Wms.  Saund.  291  i. 

(c)  2  Rol.  Abr.  410  (D),  pi.  1,  5. 


^  In  general  all  the  obligees  or  covenan- 
tees should  join  in  suing  upon  a  joint  con- 
tract ;  Eisenhart  et  al.  v.  81aymaker,  14 
Serg.  &  Raw.  R.  163 ;  Halliday  v.  Doggett 
et  al.,  6  Pick.  R.  359;  Williams  et  al.  v. 
Ehringhaus  et  al.,  2  Dev.  R.  511  ;  Blanch- 
ard  V.  Dyer,  21  Maine  R.  Ill  ;  Moody  et  al. 
V.  Sewall,  14  Id.  295  ;  Darling  v.  Simpson, 
15  Id.  176;  Jellisont).  Lafonta,  19  Pick.  R. 
245  ;  Archer  v.  Dunn,  2  Wat.  &  Serg.  R. 
360  ;  Sims  v.  Tyre,  3  Brev.  R.  249  ;  Hays  et 
al.  V.  Lasater  et  al.,  3  Pike's  R.  565  ;  Archer 
V.  Boyne,  3  Scam.  R.  526  ;  Richardson  v. 
Jones,  1  Ired.  R.  296  ;  Bailey  v.  Powell  et 
al.,  11  Misso.  R.  416  ;  Sims  et  al.  v.  Harris, 
8  B.  Mon.  R.  55  ;  Strange  v.  Floyd,  9  Gratt. 
R.  474  ;  and  the  joint  owners  of  personal 
property,  are  properly  joined  in  an  action  of 
replevin  to  recover  possession  ;  McArthur  v. 
Lane,  15  Maine  R.  245  ;  Hart  v.  Fitzgerald, 
2  Mass.  R.  509  ;  provided  their  interests  in 
the  property  are  not  separate  and  distinct; 
Chambers  v.  Hunt,  15  Pa.  St.  R.  343  ;  and 
they  may  also  join,  in  an  action  of  trespass 
for  an  injury  thereto  ;  Glover  et  al.  v.  Aus- 
tin, 6  Pick.  R.  209  ;  Pickering  v.  Pickering 
etal.,  11  N.  H.  R.  141  ;  Snioot  v.  AVathen, 
Admr.,  8  Misso.  R.  525.  But  all  the  parties 
plaintiffs  need  not  be  joined,  provided  there 
is  a  legal  cause  for  omitting  some,  such  as 
their  death,  coverture,  or  refusing  to  be 
joined  ;  Sneed  v.  Wiester,  &c,,  2  Marsh.  R. 
283  ;  Hays  et  al.  v.  Lasater,  3  Pike's  R.  565  ; 
Strange  v.  Floyd,  9  Gratt.  R.  474.  So, 
where  the  moving  cause  of  action,  of  two  or 
more  joint  covenanteeB,  is  several,  and  not 


joint,  each  may  maintain  his  several  action 
on  the  covenant  ;  Blakey,  Ac,  v.  Blakey  et 
al.,  2  Dana's  R.  462  ;  Bailey  v.  Powell  et  al., 

11  Misso.  R.  419;  Sims  et  al.  v.  Harris,  8 
B.  Mon.  R.  55  ;  Catawissa  R.  R.  Co.  v.  Titus, 
49  Pa.  St.  R.  277  ;  thus,  where  several  were 
interested  in  a  fund,  and  one  was  paid  his 
share,  it  was  held  that  the  others  were  enti- 
tled to  sue  separately,  the  payment  of  the 
one  being  considered  an  acknowledgment  on 
the  part  of  the  debtor,  that  they  had  several 
interests  ;  Parker  v.  Elder,  11  Hump.  R.  547  ; 
and,  where  there  are  joint  owners  of  a  vessel, 
one  may  sue  for  his  share,  of  the  surplus  pro- 
ceeds of  a  sale  on  execution  against  himself 
and  the  other  owners  ;  Hopkins  v.  Forsyth, 

12  Pa.  St.  R.  34. 

In  the  case  of  Mytinger  v.  Springer,  3  Wat. 
&.  Serg.  R.  405,  where  money  was  contributed 
by  several  individuals,  and  deposited  in  the 
hands  of  a  stakeholder,  as  a  w.nger  upon  the 
result  of  an  election,  it  was  held  by  Rogers, 
J.,  that,  "If  there  were  originally  a  part- 
nership, it  being  illegal,  it  would  go  for 
nothing,  and  each  of  the  parties  would  re- 
cover only  on  his  original  right  of  action, 
and  consequently  for  himself.  The  law  will 
not  recognize  a  partnership  for  an  illegal 
purpose,  and  for  that  reason  the  court  is 
bound  to  treat  the  transaction  of  partnership 
as  if  it  had  never  been  ;"  and  in  the  case  of 
App  V.  Coryell,  3  Pa.  R.  494,  where  a  simi- 
lar principle  was  involved,  the  court  said, 
"  The  contract  being  void,  the  money  could 
be  recovered  only  on  the  promise  implied 
from  the  receipt  of  it  to  the  plaintiff's  use, 


OF   JOINT   OWNERSHIP   AND   JOINT    LIABILITY.  381 

further  consequence  of  the  unity  of  a  joint  ownership,  the  import- 
ant right  of  survivorship,  which  distinguishes  a  joint  tenancy  of 
real  estate,  belongs  also  to  a  joint  ownership  of  personal  property. 
Whether  the  subject  of  the  joint  ownership  be  a  chattel  real  as  a 
lease,  or  a  chose  in  possession  as  a  horse,  or  a  chose  in  action  as 
a  debt  or  legacy,  the  surviving  joint  owner  will  be  entitled  to  the 
whole,  unaffected  by  any  disposition  which  the  deceased  joint 
♦owner  may  have  made  by  his  will,  unless  the  joint  ten-  r,^n77-| 
ancy  should  have  been  previously  served  in  the  lifetime  of  *- 
both  the  parties. (<i)  And  for  this  reason  trustees  of  settlements 
of  personal  estate  are  always  made  joint  owners,  in  order  that 
the  surviving  trustees  may  take  the  entire  fund,  rather  than  that 
the  executors  or  administrators  of  any  trustee  who  may  happen 
to  die  should  have  any  right  to  intermeddle  with  the  share  of  the 
deceased.  Where  any  beneficial  interest  accrues  to  any  joint  owner 
by  survivorship,  it  is  deemed  a  succession  within  the  Succession 
Duty  Act,  1853,  and  as  such  liable  to  the  succession  duty.(e) 

If  the  joint  ownership  be  created  by  a  will,  it  is  not  necessary 
that  the  shares  of  all  the  joint  owners  should  vest  at  the  same 
time.     Thus  under  a  bequest  to  A.  for  life,  and  after  his  decease 

(d)  Litt.  sects.  281,  282  ;  Lady  Shore  v.  Billingsley,  1  Vera.  482  ;  Willing  v.  Baine,  3  P. 
Wms.  115  ;  Morley  v.  Bird,  3  Ves.  629  ;   Williams  v.  Henshaw,  1  John,  k  H.  546. 

(e)  Stat.  10  (t  17  Vict.  c.  61,  s.  3,  ante,  p.  275. 


which,  in  this  respect,  is  determined  by  the  debt,  will  extinguish   the   claim   of  all   the 

nature  of  the  con.fideration,  ..  .  .  no  money,  partners;    a   principle    equally   true    in   all 

however,  is  received  to  a  man's  use,  but  his  cases  of  joint   contracts ;  Pierson   et   al.  v. 

own  i  consequently  the  law  implies  no  prom-  Hooker,  3  Johns.  R.  68  ;  Southworthv.  Pack- 

ise  to  any  one   but  the  owner."     But  see  to  ard,  7  Mass.  R.  95  ;  Kimball  et  al.  v.  Wilson, 

the  contrary  of  the.se  cases,  Gray  v.  Wilson,  3  N.   H.  R.  96  ;  Fitch  et  al.  v.  Forman,    14 

1  Meigs's  R.  394,  decided  in  Tennessee,  where  Johns.  R.    172;  Salmon   et  al.  v.   Davis,   4 

betting  is  not  forbidden  by  statute,  and  which  Bin.  R.  375. 

also  holds,  "  that  though  one  of  several  in-        In  case  of  the  death  of  one  or  more  of  the 

terested  in  a  joint  fund,  be  paid,  he  cannot  parties  to  a  joint  contract,  the  survivors  or 
without  the  consent  of  all,  withdraw  his  name,  ■  survivor  must  sue  upon  the  claim  ;   Beebe  et 

or  dismiss  the  suit,  even  as  to  himself. "  al.,  Exrs.,  v.  Miller,  Minor's  R.  364  ;  Vanden- 

Even  though  the  interests  of  those  making  heuvel  v.  Storrs,  3  Conn.  R.    203  ;   Collison 

the  contract  are  unequal,  if  the  contract  is  v.  Little,   2  Port.  R.   89  ;   Penn  v.  Butler,  4 

made   by  them    all  jointly,  they   should    all  Dal.  R.  354;  and  when  all  are  dead,  the  ac- 

join    in  suing  upon    it  ;   Gayle   v.  Martin,  3  tion  should  be  brought  by  the  representatives 

Ala.    R.  593  ;   Ilaughton   et  al.  x;.  Bayley  et  of  the   last    survivor;    Stowell's    Admr.    v. 

al.,  9  Ired.  R.  337.  Drake,  3  Zabr.  R..310. 

A  release  by  one  partner  of  a  partnership 


382  OF   PERSONAL   ESTATE   GENERALLY. 

to  the  issue(/)  or  childreE(^)  of  B.,  without  words  of  severance, 
all  the  issue  or  children,  born  in  A.'s  lifetime,  will  become  en- 
titled jointly,  though  some  may  not  be  living  Avhen  the  shares  of 
the  others  become  vested  interest.^  On  the  decease  of  any  of 
them  therefore  before  payment,  the  survivors  will  become  entitled 
to  their  shares,  A  similar  exception  to  the  unity  of  time  occurs 
also  in  the  case  of  a  de\dse  of  real  estate  by  will. (A) 

In  analogy  to  the  rule  by  which  a  joint  estate  in  fee  simple  in 
lands  is  created  by  a  limitation  to  two  or  more,  their  heirs  and  as- 
signs, it  is  customary  with  conveyancers  to  make  a  gift  of  personal 
r*9781  ^^*^^^  *^  ^^^^  *-*^'  *more  jointly,  by  limiting  it  to  them, 
'-  -'  their  executors,  administrators,  and  assigiis.  This,  however, 
though  usual,  is  not  strictly  necessary.  In  ill-fi-amed  instruments, 
limitations  of  personalty  are  sometimes  made  to  two  persons, 
"  and  the  survivor  of  them,  and  the  executors  and  administrators 
of  such  survivor."  If,  however,  the  persons  are  simply  made 
joint  owners,  the  law  will  be  sufficient  of  itself  to  carry  the  prop- 
erty to  the  survivor.  Bonds  and  covenants,  when  intended  to  be 
given  or  made  to  t\A'o  or  more  jointly,  are  in  like  manner  usually 
given  or  made  to  the  obligees  or  covenantees,  their  executors,  and 
adriiinistrators ;  or  if  the  subject-matter  be  assignable,  to  them, 
their  executors,  administrators,  and  assigns.  But  when  entered  into 
with  two  or  more  persons,  bonds  or  covenants  cannot,  as  respects 
the  obligees  or  covenantees,  be  joint  or  several,  at  their  election, 
for  one  and  the  same  cause ;  for  otherwise  the  court  would  be  in 
doubt  for  which  of  them  to  give  judgment.(f)  And  whether  a 
covenant  be  joint  or  several  depends  much  more  upon  the  sub- 
ject-matter than  the  words  employed.  If  each  of  the  covenan- 
tees has  a  separate  interest,  each  may  have  a  separate  cause  of 
action,  and  the  covenant  will  according!}^,  in  such  a  case,  be  sev- 
eral, though  expressed  to  be  made  with  the  covenantees  jointly  and 
severally.(j)     But  if  each  of  the  covenantees  has  not  a  separate 

(f)  Bridge  V.  Yates,  12  Sim.  645. 

(g)  Amies  v.  Skillern,  14  Sim.  428. 

(A)   See  Principles  of  the  Law  of  Real  Property,  102,  1st  ed.  ;   107,  2d  ed.  ;  112,  3d  k  4th 
eds.  ;  117,  5th  ed.  ;  12.3,  6th  ed. 
{i)  5  Rep.  19  a;  1  East,  501. 
<J)  5  Rep.  19  a ;   1  Wms.  Saund.  155  a,  n.  (1). 

1  See  ante,  p.  253,  note. 


OF   JOINT   OWNERSHIP   AND   JOINT   LIABILITY. 


383 


cause  of  action,  all  of  them  must  concur  in  suing  upon  the  cov- 
enant, even  although  it  be  expressed  to  be  made  with  some  of 
them,  "and  as  a  separate  covenant"  with  the  others;  (A-)  for  if 
all  may  sue,  all  must.(^) 

*An  exception  to  the  right  of  survivorship  between  joint  [-^^n^-q-i 
owners  occurs  in  the  case  of  partners  in  trade. ^     In  this 

{I)  Slingby's  Case,  5  Rep.  18  b  ;  Anderson  v.  Martindale,  1  East,  497  ;  Foley  v.  Adden- 
brooke,  4  Q.  B.  197,  E.  C.  L.  R.  vol.  45  ;  Hopkinson  «.  Lee,  6  Q.  B.  964,  E.  C.  L.  R.  vol. 
51  ;  Bradburne  v.  Botfield,  14  Mee.  &  Wels  559  ;  AYakefield  v.  Brown,  9  Q.  B.  209,  E.  C.  L. 
R  vol.  58  ;   Keightley  v.  Watson,  3  Exch.  Rep.  716. 

(l)  4  Q.  B.  208,  E.  C.  L.  R.  vol.  45  ;  Whetherell  v.  Langston,  1  E.xch.  Rep.  634  ;  Pugh 
V.  Stringfield,  3  C.  B.  N.  S.  2,  E.  C.  L.  R.  vol.  91. 


1  In  cases  of  solvency,  the  surviving  part- 
ner is  the  owner  at  law,  of  all  the  partnership 
efifects  ;  Knox  v.  Schepler,  2  Hill's  R.  595; 
Slatter  v.  Carrol,  2  Sandf  C.  R.  580  ;  Terri- 
tory of  Fla.,  for  the  use,  &c.,  v.  Redding  et 
al.,  1  Fla.  R.  444;  and  as  such  is  the  party 
to  sue  and  be  sued,  for  all  partnership  claims 
or  liabilities;  Alsop  v.  Mather,  8  Conn.  R. 
587  ;  Pendleton  et  al.  v.  Phelps  et  al..  4  Day's 
R.  476  ;  Sturge-ss  v.  Beach,  1  Conn.  R.  609 ; 
Yale  V.  Yale,  13  Id.  185  ;  Egberts  et  al.  v. 
Wood  et  al.,  3  Paige's  C.  R.  517;  Sale  v. 
Dishman's  Exrs.,  3  Leigh's  R.  648  ;  Linney's 
Admr.  v.  Dare's  Admr.  et  al.,  2  Id.  595  ; 
Boyce  V.  Coster,  4  Strobh.  E.  R.  30;  Mc- 
Candless  &  Co.  v.  Hadden,  9  B.  Mon.  R.  186  ; 
Bernard  v.  Wilcox,  2  Johns.  Cas  374;  Mar- 
shall et  al.  V.  De  Groot,  1  Caine's  Cas.  122  ; 
Roosevelt  et  al.  v.  McDowell,  Exr.,  1  Kelly's 
R.  489  ;  Clarke,  Admr.,  v.  Howe,  23  Maine 
R.  560  ;  Philson  v.  Admr.  of  Bampfield,  1 
Brev.  R.  202;  Davis  v.  Church,  1  Wat.  & 
Serg.  R.  240  ;  Caldwell,  Admr.,  Ac,  v.  Stile- 
man,  1  Raw.  R.  215;  Gardiner,  Admr.,  v 
Gumming  et  al.,  1  Geo.  Decs.  1 ;  Harwood  et 
al.  V.  Jones.  10  Gill  &  Johns.  R.  405  ;  Robin- 
son V.  Thompson  et  al.,  1  Smed.  &  Mar.  C. 
R.  454 ;  Hammon  v.  St.  John  et  al.,  4  Yerg. 
R.  107  ;  Southard  v.  Lewis,  4  Dana's  R.  148  ; 
Andrew's  Heirs,  &c.,  v.  Brown's  Admr.  et 
al.,  21  Ala.  R.  437;  Walker,  Admr.,  et  al.  v. 
House,  4  Md.  C.  Decs.  44  ;  Burgwin  v.  Admr. 
of  Hostler,  1  Tayl.  R.  124  ;  Ward  v.  Barber, 
1  E.  D.  Smith's  R.  423 ;  WiLson  v.  Soper,  13 
B.  Mon.  R.  411.  This  ^m*  accrescendi,  only 
holds  to  enable  the  survivor  to  get  in  the 


debts,  and  settle  the  affairs  of  the  firm ;  Jar- 
vis  V.  Hyer  et  al.,  4  Dev.  R.  367  ;  Holland  v. 
Fuller,  13  Ind.  R.  195 ;  and  his  interest, 
therefore,  is  merely  a  legal  one,  which  he 
must  use  for  the  purpose  of  bringing  the 
partnership  accounts  to  a  settlement ;  Lang's 
Heirs  v.  Warning,  17  Ala.  R.  154;  White  v. 
The  Union  Ins.  Co.,  1  N.  &  McCord's  R.  557  ; 
for  discharging  which  duty,  he  will  not  be 
entitled  to  compensation  ;  Beatty  v.  Wray, 
19  Pa.  St.  R.  516 ;  Brown  v.  McFarland's 
Exr.,  41  Pa.  St.  R.  129. 

But  where  the  surviving  partner  is  insol- 
vent, and  there  is  no  partnership  fund,  equity 
will  give  a  remedy  against  the  representatives 
of  the  deceased  partner  ;  Sale  v.  Dishman's 
Exr.,  5  Leigh's  R.  548;  Linney's  Admr.  v. 
Dare's  Admr.  et  al.,  2  Id.  595  ;  Emanuel  v. 
Bird,  Admr.,  19  Ala.  R.  596  ;  Wilder  et  al.  v. 
Keeler  et  al.,  3  Paige's  C.  R.  167;  Marshall 
et  al.  V.  De  Groot,  1  Caine's  Cas.  122  ;  Phil- 
son  V.  Admr.  of  Bampfield,  1  Brev.  R.  202 ; 
Caldwell,  Admr.,  v.  Stileman,  1  Raw.  R. 
215;  Southard  v.  Lewis,  4  Dana's  R.  148; 
Hammersley  v.  Lambert  et  al.,  2  Johns.  C. 
R.  508;  Horsey,  &c.,  v.  Heath,  Ac,  6  Ham. 
R.  355  ;  and  this  has  also  been  held,  where 
one  was  unable  to  obtain  satisfaction  from 
the  surviving  partner ;  Voorhis  v.  Child, 
17  N.  Y.  R.  354  ;  Shaw  v.  Knowles,  3  R.  I. 
R.  112.  In  some  of  the  States,  however,  by 
statute,  the  representatives  of  a  deceased 
partner  may  be  sued,  even  when  the  surviv- 
ing partner  is  solvent,  and  for  that  purpose 
may  be  joined  with  him  as  defendants ; 
McLain  et  al.  v.  Carson,  Exr.,  4   Pike's  R. 


384 


OF   PERSONAL   ESTATE   GENERALLY. 


case  the  law,  in  order  to  the  encouragement  of  commerce,  vests 
in  the  executors  or  administrators  of  a  deceased  partner,  the 


164  ;  Maxey  v.  Averill's  Exrs.,  2  B.  Mon.  R. 
108;  Ransom  v.  Poraeroy,  Admr.,  8  Blackf. 
R.  383:  Brewster's  Admr.  v.  Sterrett,  32  Pa. 
St.  R.  115 ;  Moore's  Ap.,  34  Id.  411 ;  or  they 
may  be  sued  alone  ;  and  this  has  been  held, 
even  though  there  is  an  action  for  the  same 
cause  pending  against  the  surviving  partners  ; 
Creswell  et  al.,  Exrs.,  v.  Blank,  3  Grant's 
Cas.  320  ;  and  by  a  statute  of  Tennessee,  the 
doctrine  of  survivorship  does  not  apply  to  the 
case  of  land  held  by  a  firm  ;  Gaines  v.  Catron, 
1  Humph.  R.  514. 

Where  the  executor  of  a  partner,  continues 
the  business  of  his  te.«tator,he  thereby  becomes 
a  partner,  and  liable  as  such,  not  in  his  rep- 
resentative, but  in  his  individual  capacity ; 
Alsop  V.  Mather  et  al.,  8  Conn.  R.  684  ;  Eg- 
berts et  al.  v.  Wood  et  al.,  3  Paige's  C.  R. 
617  ;  but  the  personal  representatives  of  a  de- 
ceased partner  may  carry  on  the  business, 
where  a  covenant  to  that  effect  existed  in  the 
copartnership  articles,  or  he  directed  by  will 
that  it  should  be  done  ;  Laughlin  v.  Lorentz's 
Admr.,  48  Pa.  St.  R.  275. 

There  is  no  such  analogy  between  death 
and  insolvency,  in  cases  of  partnership,  as  to 
give  by  law  a  solvent  partner,  the  sole  ad- 
ministration of  the  assets,  where  the  remain- 
ing partners  are  insolvent;  Hubbard  et  al.  v. 
Guild,  1  Duer's  R.  662. 

Real  estate,  when  purchased  with  partner- 
ship funds,  and  for  partnership  purposes,  is 
regarded  as  partnership  property  ;  Brooke  v. 
Washington,  8  Gratt.  R.  248  ;  Wheatley's 
Heirs  v.  Colhoun,  12  Leigh's  R.  272  ;  Pierce's 
Admr.  v.  Triggs's  Heirs,  10  Id.  424;  Whis- 
low  V.  Chiffelle,  S.  C.  Eq.  (Harper's),  25; 
Edgar  v.  Donnally  et  al.,  2  Munf.  R.  387; 
Deloney  v.  Huteheson,  2  Rand.  R.  183  :  Buc- 
han  V.  Sumner,  2  Barb.  C.  R.  166;  Donald- 
son V.  The  Bank  of  Cape  Fear,  1  Dev.  C.  R. 
106;  Divine,  Ac,  v.  Mitehum,  4  B.  Mon.  R. 
489  ;  Hauff  t'.  Howard,  3  Jones's  Eq.  R.  440  ; 
Tillinghurst  v.  Champlin,  4  R.  I.  R.  173  ; 
Matlock  V.  Matlock,  5  Ind.  R.  403 ;  and  even 
when  purchased  in  the  name  of  the  partners 
as  tenants  in  common,  it  will,  if  for  partner- 
ship purposes,  be  deemed,  in  equity,  as  part- 
nership estate  ;  Hoxie  v.  Carr  et  al.,  1  Sumn. 


R.  171;  Sigourney  v.  Mann  et  al.,  7  Conn. 
R.  11  ;  Smith  v.  Tarlton  et  al.,  2  Barb.  C.  R. 
336  ;  CUley  v.  Huse,  40  N.  H.  R.  358;  so, 
likewise,  where  the  name  of  one  of  the  part- 
ners only  is  used  ;  Boyers  v.  Elliott,  7 
Humph.  R.  204  ;  Hunt  et  al.  v.  Benson,  2  Id. 
459;  Lacy  v.  Hall,  37  Pa.  St.  R.  360; 
Moreau  v.  Saffarans,  3  Sneed's  R.  595  ;  Jar- 
vis  V.  Brooks,  7  Fosters  R.  37;  Coder  v. 
Huling,  27  Pa.  St.  R.  84  ;  and,  under  these 
circumstances,  the  realty  is  considered  in 
equity,  as  personal  property  ;  Hoxie  v.  Carr 
et  al.,  1  Sumn.  R.  171 ;  Buck,  Ac,  v.  Winn, 
&c.,  11  B.  Mon.  R.  322;  Boyce  v.  Coster,  4 
Strobh.  E.  R.  30  ;  Rice  v.  Bernard  et  al.,  20 
Vt.  R.  479 ;  Delmonico  v.  Guillaume.  2 
Sandf.  C.  R.  366  ;  Piatt  v.  Oliver  et  al.,  3 
McL.  R.  27;  Andrew's  Heir.'!,  &c.,  v.  Brown's 
Admr.  et  al.,  21  Ala.  R.  437  ;  Davis  v.  Chris- 
tian, 15  Gratt.  R.  11  ;  Ludlow  v.  Cooper,  4 
0.  R.  (N.  S.),  1;  Moderwell  v.  Mullison,  21 
Pa.  St.  R.  257 ;  Black  v.  Black,  15  Geo.  R. 
445  ;  Collumb  v.  Read,  24  N.  Y.  R.  505  ;  Bird 
V.  Morrison,  12  Wis.  R.  138 ;  and  may  be 
taken  in  execution,  and  sold,  under  a  writ  of 
7?.  fa.;  Hunter  v.  Martin,  2  Richard.  R.  541 ; 
but,  at  law,  real  estate  so  purchased,  is  con- 
sidered as  the  several  property  of  the  part- 
ners ;  Burnside  et  al.  v.  Marick  et  al.,  4 
Mete.  R.  537  ;  Dyer  v.  Clark,  Admr.,  et  al., 
5  Id.  562  ;  Howard  et  al.  v.  Priest  et  al..  Id. 
582  ;  Ensign  v.  Briggs,  6  Gray's  R.  329 ;  Qal- 
braith  v.  Gedge,  16  B.  Mon.  R.  631 ;  Lang  v. 
Waring,  25  Ala.  R.  625  ;  Blake  v.  Mutter,  19 
Maine  R.  16  ;  in  which  last  case  it  was 
doubted,  whether  a  different  rule  would  hold, 
even  in  equity,  in  that  State,  against  the  ex- 
press provisions  of  statute,  c.  35,  §  1,  which 
provides,  "  that  all  lands  conveyed  to  two  or 
more  persons,  shall  be  held  by  them  as  ten- 
ants in  common,  and  not  as  joint  tenants,  un- 
less the  conveyance  contain  express  words 
clearly  showing  a  different  intention  ;"*  in 
case,  too,  of  the  death  of  one  of  the  partners, 
the  legal  title  descends  and  vests  in  his  heirs 
at  law  ;  Yeatman  v.  Woods,  6  Yerg.  R.  20  j 
Andrew's  Heirs,  Ac,  v.  Brown's  Admrs., 
Ac,  21  Ala.  R.  437  ;  Piper  v.  Smith,  1  Head'a 
R.  93  ;  but  the  surviving  partner  has  an  equi- 


OF   JOINT    OWNERSHIP   AND    JOINT    LIABILITY.  385 

share  of  the  deceased  in  all  personal  chattels  in  possession,  such 
as  merchandise  or  ships,  which  were  the  joint  property  of  the 


table  lien  thereon,  for  his  indemnity  against  lands  purchased  by  one  of  the  partners,  and 
the  debts  of  the  firm,  and  the  balance  that  paid  for  out  of  the  joint  funds.  .  .  .  But 
may  be  due  him;  Gray  v.  Palmer,  9  Cal.  R.  this  species  of  resulting  trust  is  open  to  cer- 
61ti ;  and  as  the  several  property  of  each  of  tain  qualifications,  amongst  which  it  is  proper 
the  partners,  such  property  may  be  taken  in  to  notice  the  following,  viz.,  that  the  person 
execution  at  the  suit  of  a  creditor  of  one  of  whose  money  was  invested  in  the  purchasCj  is 
the  partners,  as  to  his  share,  but  equity  will  not  obliged  to  take  the  land,  and  to  consider 
compel  him  to  hold  it  in  trust,  to  be  applied  the  purchaser  as  his  trustee,  but  may  elect  to 
if  necessary  to  the  payment  of  the  partner-  treat  him  as  his  debtor,  and  to  claim  the  money 
ship  claims;  Peck  et  al.  v.  Fisher,  7  Cush.  instead  of  the  property.  As  a  consequence  of 
R.  386  ;  Clagett  v.  Kilbourne,  1  Black's  S.  C.  this,  and  because  the  claim  to  a  resulting 
R.  346.  trust  is  merely  that  of  an  equity,  founded 
In  Buck,  A'c,  v.  Winn,  &e.,  11  B.  Mon.  R.  upon  the  presumptive  interest  of  the  parties, 
322,  it  was  intimated,  that  if  partnership  funds  that  equity  may  be  rebutted,  even  by  parol 
were  invested  in  real  estate,  not  necessary  or  evidence  and  circumstances  to  defeat  it.  .  .  . 
intended  to  be  used  in  the  business  of  the  This  qualification  of  the  doctrine  seems  to 
firm,  either  bought  for  speculation  or  as  an  in-  be  decisive  of  the  present  case.  .  .  .  Noth- 
vestment,  it  would  be  regarded  as  partner-  ing  can  be  more  clear,  than  that  the  property 
ship  assets  ;  in  New  York,  however,  it  has  in  question,  was  purchased  and  improved  for 
been  decided,  that  in  order  to  have  that  ef-  the  sole  and  separate  use  of  Wm.  Crammond, 
feet,  the  real  estate  so  purchased  must  be  for  and  that  his  partners  so  understood  and  as- 
partnership  purposes  ;  Cox  v.  McBurney  et  sented  to  it.  The  circumstances  to  establish 
al.,  2  Sanford,  S.  R.  561  ;  and  this  has  also  these  facts  are  conclusive.  The  nature  of  the 
been  decided  in  the  Circuit  Court  of  the  Uni-  property, — a  country-seat,  improved  at  an  im- 
ted  States  for  the  Eastern  District  of  Penn-  mense  expense,  in  the  vicinity  of  the  place  at 
sylvania,  in  the  able  opinion  delivered  by  which  the  purchaser  alone  resided,  capable  of 
Judge  Washington  in  the  case  of  Phillips  t;.  aflfording  to  him  an  elegant  luxury,  but  to- 
Crammond,  2  Wash.  C.  C.  R.  442,  in  which  tally  useless  and  unproductive  to  the  concern, 
he  says,  "  Crammond  purchased  a  piece  of  and  out  of  the  view  and  scope  of  the  business 
ground  on  the  Schuylkill,  containing  about  in  which  thej' were  engaged."  But  in  Penn- 
twenty-eight  acres,  upon  which  he  built  a  sylvania,  in  the  case  of  Erwin's  Ap.,  39  Pa. 
house  for  a  country-seat,  and  in  other  respects  St.  R.  535,  it  was  decided  that  land  purchased 
improved  the  same  at  considerable  expense,  in  the  name  of  one  of  the  members  of  a  part- 
to  which  he  gave  the  name  of  Sedgely.  The  nership.  but  paid  for  with  the  money  of  the 
purchase-money  for  this  property,  and  what  firm,  and  used  by  the  firm,  though  not  ne- 
was  expended  in  improving  it,  was  drawn  cessary  for  the  partnership  purposes,  and  not 
from  the  partnership  funds,  and  the  convey-  used  as  intended,  was  partnership  property, 
ance  was  made  to  Crammond  alone.  ...  In  the  same  State  it  has  been  held,  that 
The  general  principle  is,  that  if  a  receiver,  where  partners  wish  to  make  real  estate  part- 
executor,  factor,  or  trustee,  lays  out  the  nership  property,  as  to  subsequent  purchasers 
money  which  he  holds  in  his  fiduciary  charac-  without  notice,  or  judgment  creditors,  they 
ter,  in  the  purchase  of  real  property,  and  must  do  it  by  some  deed,  or  instrument 
take  the  conveyance  to  himself,  he  who  is  en-  of  writing,  recorded  ;  Ridgway's  Appeal,  15 
titled  to  the  money,  which  has  been  thus  in-  Pa.  St.  R.  177  ;  Lancaster  Bank  v.  Myley,  1 
vested,  may  follow  the  same,  and  consider  Id.  544;  Hale  r.  Henrie,  2  Watt.  R.  143.  In 
the  purchase  as  made  for  his  use,  and  the  Patterson  v.  Brewster,  4  Edw.  C.  R.  352,  it 
purchaser  a  trustee  for  him.  Upon  the  same  was  ruled,  that  there  cannot  be  a  partnership 
principle,  I  conceive  that  a  resulting  trust  in  buying  and  selling  real  estate  ;  but  the 
would    arise    to    a   partnership   concern,   in  contrary  has  been    decided  in  Kramer  v.  Ar- 

25 


386  OF    PERSONAL   ESTATE    GENERALLY. 

partnersliip.(;/i)  But  this  rule  does  not  extend  at  law  to  choses  in 
action,  which  must  accordingly  be  sued  for  in  the  name  of  the 
survivor.(?z)  In  equity,  however,  the  share  of  the  deceased  part- 
ner, both  in  the  choses  in  possession  and  in  action  belonging  to 
the  partnership,  devolves  on  his  executors  or  administrators. 
The  consequence  is  that,  though  the  choses  in  action  must  be 
sued  for  by  the  surviving  partner,  he  will  be  a  trustee  of  the 
share  of  the  deceased  partner  for  his  executors  or  administra- 
tors.(o)  The  same  rule  is  applied  in  equity  even  to  real  estate 
purchased  for  the  purposes  of  a  trading  partnership, (2^)  and  con- 
veyed to  the  partners  as  joint  tenants  in  fee.  On  the  decease  of 
any  of  them,  equity  holds  the  survivors  to  be  trustees  of  the 
share  of  the  deceased  for  his  executors  or  administrators  as  part 
of  his  personal  estate, ((/) 

Indeed,  as  a  general  rule,  joint  ownership  is  not  favored  in 
equity,  on  account  of  the  right  of  survivorship  *which 
attaches  to  it. (r)     If  therefore  two  persons  advance  money 

(m)  Co.  Litt.  182  a :  Kempe  v.  Andrews,  3  Lev.  290  ;  Rex  v.  Collector  of  Customs,  2 
Mau.  &  Selw.  223  ;  Buckley  v.  Barber,  6  Exch.  Rep.  164. 

{71)  Martin  v.  Crompe,  1  Lord  Raym.  340  ;  S.  C.  2  Salk.  444  ;  2  Wms.  Saund.  117  b, 
n.  (2). 

(o)   Jefiferys  v.  Small,  1  Vern.  217  ;  Lake  v.  Craddock,  3  P.  Wms.  158. 

(p)  Randall  v.  Randall,  7  Sim.  271. 

(?)  Phillips  V.  Phillips,  1  My.  &  Keen,  649,  663  ;  Broom  v.  Broom,  3  My.  &  Keen,  443  ; 
Morris  v.  Kearsley,  2  You.  &  Coll.  139  ;  Bligh  v.  Brent,  2  You.  &  Col.  258  ;  Houghton  v. 
Houghton,  11  Sim.  491 ;  Custance  v.  Bradshaw,  4  Hare,  315,  322  ;  Darby  «-•.  Darby,  3  Drew. 
495  ;  see  Cookson  v.  Cookson,  8  Sim.  529. 

(r)  2  Atk.  55 ;  2  Ves.  Sen.  258. 

thurs  etal.,  7Pa.  St.  R.  171;   Brady  et  al.,  Serg.  &   Raw.  R.   438,  which    decided,  that 

Exrs.,  V.   Colhoun   et  al.,  Admrs.,  1  Pa.   R.  where  real   estate  was  taken   by  partners  on 

140  ;   Dudley  v.  Littlefield,  21  Maine  R.  422;  ground-rent,  and   buildings  erected  thereon, 

River  Whaling  Co.  f.  Borden,  10  Cush.  R.  458.  for  the  purpose  of  carrying  on  glass-works, 

Where  real   estate  is  considered    partner-  which  was    subsequently  mortgaged  by  one 

ship  assets,  judgments  for  partnership  debts  partner,  without  notice  to  the  mortgagee  of 

will  be  payable  out  of  the  proceeds,  in  prefer-  partnership  debts  then  existing,  the  property 

ence  to  judgments  obtained  against  the  part-  was  to  be  considered  as  between  the  mortga- 

ners  individually  ;  Overholtz"s  Appeal,  12  Pa.  gee  and  partnership  creditors,  as  real  estate, 

St.  R.  222;  Divine,  Ac,  v   Mitchum,    4  B.  and  liable  in  the  first  instance  to   the  mort- 

Mon.  R.  488;  North  Penna.  Coal   Co.'s  Ap.,  gage.     The  real  estate  owned  by  the  partners 

45  Pa.  St.  R.  181  ;  a  purchaser,  however,  at  after  the  payment  of  all  the  debts  of  the  firm, 

sherifiF's  sale,  without  notice  of  the  partner-  and   the  adjustment  of  all  the    partnership 

ship  claim,  will  hold  against  the  creditors  of  equities,  will  be  treated  as  real  estate  ;  Buck- 

the  firm  ;  Buck,  Ac  ,  v.  Winn,  Ac,  11  B.  Mon.  ley  v.  Buckley,  11   Barb.  S.  R.  44  ;   Buchan 

R.  322  ;  and  the  same  principle  seems  to  have  v.  Sumner,  2  Barb.  C.  R.  166. 
ruled  the  case  of  McDermot  v.  Laurence,  7 


OF   JOINT    OWNEESHIP    AND    JOINT    LIABILITY.  387 

by  way  of  mortgage  or  otherwise,  and  take  the  security  to 
themselves  jointly,  and  one  of  them  die,  the  survivor  will  be  a 
trustee  in  equity  for  the  representatives  of  the  deceased,  of  the 
share  advanced  by  him. (5)  And  when  the  intention  is  that  the 
survivor  should  receive  the  whole,  a  declaration  should  be  in- 
serted that  his  receipt  alone  shall  be  a  sufficient  discharge  for  the 
money  secured. (^) 

An  ownership  in  common  (or,  as  it  is  usually  styled  in  analogy 
to  real  estate,  a  tenancy  in  common)  of  chattels  may  arise  either 
from  the  severance  of  a  joint  ownership,  or  from  a  gift  to  two  or 
more  to  hold  in  common, (^<)  As,  however,  a  chose  in  action  is 
inalienable  at  law,  a  joint  ownership  of  a  chose  in  action  cannot 
be  severed  at  law  by  either,  or  even  by  both,  of  the  joint  owners. 
Thus  in  case  of  the  bankruptcy  of  a  joint  creditor,  by  which  all 
his  estate  becomes  vested  in  his  assignees,  an  action  against  the 
debtor  must  be  brought  in  the  joint  names  of  the  assignees  and 
the  other  joint  creditors.(i;)  And  if  two  joint  creditors  should 
become  bankrupt,  the  action  must  be  brought  in  the  joint  names 
of  all  the  assignees  of  both  of  th.em..{iv)  A  tenancy  in  common 
cannot  in  fact  exist  at  law  of  a  chose  in  action.  A.  may  owe  201. 
to  B.  and  C.  jointly,  or  he  may  owe  10/.  to  B.  and  10/.  to  C. ;  but 
he  cannot  owe  201.  to  B.  and  C.  in  common.  If  each  has  a 
several  cause  of  action,  each  must  sue  separately.  In  equity, 
however,  the  case  is  dift'erent.  Though  B.  and  C.  are  joint 
owners  at  *law,  in  equity  they  may  be  owners  in  com- 
mon; and  on  the  decease  of  either  of  them,  his  share  '-  -^ 
may  in  equity  belong  to  his  representatives,  instead  of  accruing 
beneficially  to  his  companion.  And  with  regard  to  letters-patent, 
it  appears  that  even  at  law,  they  may  be  the  subject  of  an  owner- 
ship in  common,  and  that  the  assignee  of  an  undivided  share 
may  alone  sue  for  an  infringement  of  that  part  of  the  patent, 
without  joining  the  persons  interested  in  the  remaining  8hare8.(2;) 

is)   Petty  V.  Styward,  1  Chnn.  Rep.  57;   1  Eq.  Ca.  Ab.  290. 

(0  See  Principles  of  the  Law  of  Real  Property,  342,  1st  ed.  ;  343,  2d  ed.  ;  355,  3d  ed.  ; 
361,  4th  ed.  ;  372,  5th  ed.  ;  394,  6th  ed. 

(u)  Litt.  sect.  321. 

{V)  Thomason  v.  Frere,  10  Ea.st,  418.  See  stat.  12  &  13  Vict.  c.  106,  s.  152,  repealing 
Stat.  5  &  6  Vict.  c.  122,  s.  31,  to  the  same  effect. 

(w)  See  Hancock  v.  Hey  wood,  3  T.  Rep.  433. 

(x)  Dunnicliff  v.  Mallet,  7  C.  B.  N.  S.  209,  E.  C.  L.  R.  vol.  97  ;  Walton  v.  Lavater,  8 
C.  B.  N.  S.  162,  E.  C.  L.  R.  vol.  98. 


388  OF   PERSONAL   ESTATE   GENERALLY. 

But  it  seems  doubtful  wlietlicr  one  owner  in  common  of  letters- 
patent  can  work  the  patent  on  his  own  account,  without  the 
concurrence  of  the  others.(_y)^  In  the  creation  of  a  tenancy  in 
common  by  deed,  there  is  very  seldom  any  difiiculty.  But  in 
wills,  where  greater  indulgence  is  given  to  informal  words,  the 
rule  is,  that  any  words  which  denote  an  intention  to  give  to  each 
of  the  legatees  a  distinct  interest  in  the  subject  of  gift,  will  be 
sutficieut  to  make  them  tenants  in  common.  Thus  a  gift  by  will 
to  two  or  more  persons  "equally  to  be  divided"  between  them,(e) 
or  simply  "between  them,"(rt)  or  "in  joint  and  equal  propor- 
tions,"(6)  or  "equaHy,"(e)  or  "respectively,"(c^  or  "to  be  enjoyed 
alike, "(e)  will  make  such  persons  tenants  in  common,  and  not 
joint  tenants,  as  they  would  have  been  without  the  insertion  of 
such  words.  In  this  respect  the  rule  is  the  same  whether  the 
subject  of  the  devise  or  bequest  be  real  or  personal  estate. (/) 

*Owners  in  common  of  personal  estate,  like  tenants  in 
'-  ^  common  of  lands  have"  merely  a  unity  of  possession  :  the 
interest  of  one  may  be  larger  or  smaller  than  that  of  the  other, 
one  having,  for  instance,  one-third,  and  the  other  two-thirds  of 
the  property.  So  the  title  need  not  be  the  same,  as  one  may  have 
been  originally  a  joint  tenant  with  a  third  person,  who  may  have 
severed  the  joint  tenancy  by  assigning  liis  moiety  to  the  other. 
The  right  of  survivorship,  which  springs  from  a  unity  of  interest 
and  title,  has  accordingly  no  place  between  owners  in  common. (^) 

Connected  with  the  subject  of  joint  ownership  is  that  of  joint 
liability.  Two  or  more  persons  may  be  jointly  liable  to  the  same 
debt  or  demand.  In  a  joint  bond,  the  obligors,  according  to  the 
usual  form,  bind  themselves,  their  heirs,  executors,  and  adminis- 
trators jointly;  and  in  a  joint  covenant,  they,  in  like  manner, 

{y)  Hancock  v.  Bewley,  1  Johnson,  601. 

(z)   Blisset  c.  Cranwell,  1  Salk.  226  ;  Phillips  v.  Phillips,    2  Vern.  430  ;  1  Eq.  Ca.  Abr. 
292,  pi.  6  ;  IP.  Wms.  34. 

{a)   Lasbbrook  v.  Cock,  2  Mer.  70.  (c)   Lewen  v.  Dodd,  Cro.  Eliz.  443. 

(b)  Ettricke  ^•.  Ettricke,  2  Ambl.  6.i6.  {d)    1  Atk.  580;   1  Ves.  Sen.  104. 

(f)   Loveacres  <^.  Mudge  r.  Blight,  Cowp.  352. 

(/)  See  2  Jarra.  Wills,  1(51  et  seq.  1st  ed.  :  211,  2d  ed.  ;   23],  3d  ed. 

(§■)   Litt.  sect.  321. 

1  See  ante,  p.  222,  note. 


OF   JOINT    OWNERSHIP    AND    JOINT    LIABILITY.  389 

covenant  for  themselves,  their  heirs,  executors,  and  administra- 
tors jointly.  In  every  case  of  joint  liability,  each  is  liable  for  the 
whole  debt,(A)  yet  they  are  all,  like  joint  owners,  considered  as 
one  person.'  They  must  accordingly  all  be  sued  together  during 
their  joint  lives  ;(z)  and  a  release  to  one  of  them  w^ill  discharge 
them  all.(j)  It  is,  however,  provided  by  the  Bankruptcy  A.ct, 
1861,  that  the  order  of  discharge  of  a  bankrupt  shall  not  discharge 
any  person  who  was  a  partner  with  the  bankrupt  at  the  time  of 
the  bankruptcy,  or  was  then  jointly  bound,  or  had  made  any  joint 
contract  with  the  bankrupt.(A;)  And  if  any  person  jointly  liable 
upon  any  simple  *contract  shall  be  discharged  by  the  r^28.31 
statute  of  limitations,  but  his  co-contractor  or  co-contrac- 
tors shall  be  liable  by  virtue  of  a  new  acknowledgment  or  prom- 

(h)  1  Barn.  &  Aid.  35.  (0   1  Wms.  Saund,  291  b,  n.  (4). 

{j)  2  Rol.  Abr.  412  (G),  pi.  4;  Clayton  v.  Kynaston,  2  Salk.  574  ;  2  Wms.  Saund.  47  gg, 
n.  (1)  ;  Warwick  v.  Ricbard.'=on.  14  Sim.  281. 

(/,)  Stat.  24  &  25  Vict.  c.  134,  s.  163,  repealing  stat.  12  &  13  Viet.  c.  106,  s.  200,  repeal- 
ing stats.  6  Geo.  IV,  c.  16,  s.  121,  and  5  &  6  Vict.  c.  122,  s.  37,  to  the  same  eflfect. 


1  Whether  a  contract  be  joint,  or  joint  and  son  et  al.,  13  Mass.  R.  148  ;  Sheehy  v.  Man- 
several,  each  of  the  contractors  is  liable  for  deville,  5  Cranch's  R.  254  ;  Townsend  v.  Rid- 
the  whole  debt ;  Ward  v.  Johnson  et  al.,  13  die,  2  N.  H.  R.  448  ;  Anderson  v.  Neef  et  al., 
Mass.  R.  148;  McMahan  v.  Murphy,  1  32  Pa.  St.  R.  379;  White  v.  Smith  et  al., 
Bailey's  R.  535  ;  though  it  has  been  held  in  33  Id.  186. 

a  joint  covenant,  to  secure  the  payment  of  In  the  case  of  Willings  et  al.  v.  Consequa, 
rent,  that  the  sureties  could  not  be  sued  Pet.  C.  C.  R.  301  ;  it  was  held,  that  "where 
without  joining  the  principal  ;  CityofPhila.  two  or  more  persons  are  liable  for  a  simple 
V.  Reeves  et  al.,  48  Pa.  St.  R.  472;  and  contract  debt,  a  judgment  obtained  against 
where  an  obligation  is  joint"  and  several,  one  of  them,  is  an  extinguishment  of  the 
proceedings  may  be  instituted  against  either  claim  on  the  other  debtors,  in  the  same  man- 
one,  or  all,  of  those  bound  ;  Ward  v.  John-  ner,  as  a  bond,  given  by  one  of  two  persons 
son,  13  Mass.  R.  148;  Crane,  Admr  ,  v.  Al-  liable  on  a  simple  contract,  is  an  extinguish- 
ling,  3  Green's  R.  423  ;  Dudley's  (Geo.)  R.  ment  of  the  original  debt."  By  a  statute  of 
423;  Merrick  r.  The  Bank  of  the  Metropolis,  Pennsylvania,  however,  it  is  now  enacted, 
8  Gill's  R.  61 ;  but  the  suit  must  be  against  that  'where  a  judgment  shall  be  hereafter 
one,  or  all,  and  cannot  be  against  any  inter-  recovered  against  one  or  more  of  several 
mediate  number  ;  Minor  et  al.  v.  The  Me-  copartners,  or  joint  and  several  obligors, 
chanics'  Bank  of  Alexandria,  1  Pet.  R.  73  ;  promisors,  or  contractors,  without  any  plea 
and  the  personal  representatives  of  one  de-  in  abatement,  that  all  the  parties  to  the  in- 
ceased,  are  ec(ually  liable  with  their  testator  strument  or  contract  on  which  the  suit  is 
or  intestate  ;  Bulkley  «.  Wright  et  al.,  Exrs.,  founded,  are  not  made  parties  thereto,  such 
2  Root's  R.  70  ;  Miller  v.  Reed,  3  Grant's  judgment  shall  not  be  a  bar  to  a  recovery  in 
Gas.  52.  So,  the  fact  of  one  of  several  joint  any  subsequent  suit  or  suits,  against  any  per- 
and  several  covenantors  having  been  sued,  son  or  persons,  who  might  have  been  joined 
will  not  prevent  a  subsequent  action  as  to  in  the  action  in  which  such  judgment  was 
another,  or  all  jointly,  provided,  of  course,  obtained,  whether  the  same  shall  be  obtained, 
the  previous  action  has  not  resulted  in  a  amicably  or  by  adversary  process."' 
satisfaction  of  the  demand  ;   Ward  v.  John-  Purd.  Dig.  (ISGI),  p.  578,  sec.  38. 


.390  OF    PERSONAL   ESTATE   GENERALLY. 

ise,  judgment  may  be  given  and  costs  allowed  against  the  latter 
person  or  persons  only.(^^  And  if  such  person  or  persons  shall 
plead  in  abatement  that  the  other  ought  to  be  jointly  sued,  and 
it  shall  appear  that  he  was  discharged  by  the  statute,  the  issue 
joined  on  such  plea  shall  be  found  against  such  person  or  persons 
pleading  the  8ame.(?»)  The  ftict  of  one  joint  debtor  being  beyond 
the  seas  at  the  time  Avhen  the  cause  of  action  accrues,  will  not 
deprive  the  others  of  the  bcnetit  of  the  statutes  of  limitation  ;  and 
the  recovery  of  judgment  against  any  who  were  not  beyond  seas, 
will  be  no  bar  to  an  action  against  the  absent  debtors  on  their 
return.  And  for  this  purpose  no  part  of  the  United  Kingdom, 
nor  the  Isle  of  Man,  nor  the  Channel  Islands,  are  to  be  considered 
as  beyond  8ea8.(7i)  After  the  decease  of  any  one  joint  debtor  the 
survivors  or  survivor  of  them  may  still  be  sued  for  the  whole 
debt,  as  though  the  deceased  had  no  share  in  it,(o)  and  the  estate 
of  the  deceased  will  be  discharged  from  all  liability  both  at  law 
and  in  equity.(  jj)^     So  if  a  judgment  be  obtained  against  two  or 

(/)  Stat.  9  Geo.  IV,  c.  14.  s.  1.  (n)   Stat.  19  &  20  Vict.  c.  97,  ss.  11.  12. 

(7«)  Sect.  2.  (o)   Richards  v.  Heather,  1  Barn.  &  Aid.  29. 

(p)  Richardson  v.  Horton,  6  Beav.  185;  Wilmer  ti.  Currey,  2  De  Gex  &  Stnale,  347; 
Crossley  v.  Dobson,  2  De  Gex  &  Smale,  486  ;  Other  v.  Iveson,  3  Drew.  177. 

1  One  of  several  joint  contractors,  can-  Leod,  1  Smed.  &  Mar.  R.  391 ;  The  State 
not  by  his  admissions  revive  the  liability  Treasurer  ii.  Friottetal.,  Admrs.,  24  Vt.  R. 
of  the  other  obligors,  extinguished  by  the  134;  Bradley  v.  Burwell,  3  Denio's  R.  61; 
statute  of  limitations,  though  he  may  his  Teller  v.  Wetherell,  9  Mich.  R.  464  ;  Black 
own  :  iMott  v.  Petrie,  &c.,  15  Wend.  R.  317;  v.  Struther^,  11  Iowa  R.  4.59.  But  by  stat- 
Bowdre  v.  Hampton,  6  Richard.  R.  208.  But  utes  of  Tennessee,  Massachusetts,  Mississippi, 
the  acknowledgment  of  a  debt,  by  one  part-  Ohio,  Pennsylvania,  and  North  Carolina,  the 
ner,  after  a  dissolution  of  the  firm,  is  suffi-  representatives  of  a  deceased  obligor  may  be 
cient  to  take  a  case  out  of  the  statute  as  re-  joined  in  an  action  against  the  survivor  : 
gards  the  others;  Smith,  Admr.,  v.  Ludlow  Perkins  v.  Hadley,  4  Hnyw.  R.  152;  Clari- 
et  al.,  6  Johns.  R.  267  ;  though  the  mere  ac-  bon  v.  Goodloe,  Cook's  R.  391  ;  Simpson  et 
knowledgraent  by  one,  is  not  considered  a  al.  ii.  Young  et  al.,  2  Humph.  R.  514  ;  Foster 
sufficient  proof  of  an  existing  debt,  to  bind  etal.  v.  Hooper,  Admr.,  2  Mass.  R.  572  ;  Hen- 
the  other;  Hackley  v.  Patrick,  3  Johns.  R.  derson  et  al.  v.  Talbert,  5  Smed.  &  Mar.  R. 
536.  109  :  Smith  v.  Fagan  et  al.,  2  Dev.  R.  298  ; 

2  In  all  cases  of  joint  obligation,  the  sur-  Taylor  r.  Taylor,  5  Hump.  R.  110  ;  Burgoyne 
viving  debtor  is  the  party  liable,  who  must  v.  0.  Life  Ins.  and  Trust  Co.,  5  0.  R.  (N.  S.) 
be  sued  alone,  without  being  joined  with  the  586  ;  Moore's  Ap.,  34  Pa.  St.  R.  411.  See 
representatives  of  the  decedent  ;   Hott  v.  Pe  also  a7ite,  p.  279,  note. 

trie,  Ac,  15  Wend.  R.  317  ;   Waters's  Repre-  Some  new  cases  also  hold,  that  in  equity, 

sentativesu.  Riley's  Admr.,  2  Har.  &  Gill's  R.  a  bond  will  be  treated  as  several,   so  as  to 

305  ;  Preston  v.  Preston,  1  Har.  &  Johns.  R.  make  the  representatives  of  a  deceased  obli- 

366  ;  Murphy's  Admrs.  v.  The  Branch  Bank  gor,proportionably  liable  ;  Smith  etal..  Exr.s., 

of  Alabama,  5  Ala.  R.  421  ;   Boykin  v.  Wat-  v.   Martin  et  al..  Exrs.,  4  Desauss.   R.   148; 

son's  Admrs.,  3  Brev.  R.  260  ;  Poole  v.  Mc-  Haggins  v.  Peck,  Admr.,  10  B.  Mon.  R.  217 


OF   JOINT   OWNERSHIP   AND   JOINT    LIABILITY.  391 

more  jointly,  and  one  of  them  die,  the  personal  estate  of  the  sur- 
vivor or  sur\dvors  will  be  exclusively  liable  to  be  taken  in  execu- 
tion, although  the  real  estate  of  the  deceased,  being  bound  from 
the  date  of  the  judgment,  must  contribute  equally  with  the  real 
estate  of  the  survivors. ((/) 

*A  hability,  however,  may  be  both  joint  and  several  at  r* 90^^-1 
the  same  time ;  and,  as  such  a  liability  is  more  beneficial 
to  the  creditor,  it  is  more  usual  than  a  liability  which  is  simply 
joint.  A  joint  and  several  bond  runs  in  this  form  :  "  For  which 
payment  to  be  well  and  truly  made,  we  bind  ourselves,  and  each  of 
us,  and  the  heirs,  executors,  and  administrators  of  us  and  of  each  of 
us,  jointly  and  severally ;"  or  if  there  be  a  larger  number  of  oblig- 
ors, say  five,  the  better  form  is :  "  For  which  payment  to  be  well 
and  truly  made,  we  bind  ourselves,  and  each  of  us,  and  any  two, 
three  or  four  of  us,  and  the  heirs,  executors,  and  administrators 
of  us  and  of  each  of  us,  and  of  any  two,  three  or  four  of  us  jointly 
and  severally."  In  this  case,  an  action  may  be  brought  against 
all  the  obligors,  or  against  any  one,  two,  three  or  four  of  them 
whom  the  obligee  may  select ;  otherwise  he  must  have  sued  either 
all  of  them  jointly,  or  any  one  of  them  singly. (r)  A  joint  and 
several  covenant  is  usually  in  this  form  :  "  And  the  said  A.  B. 
and  C.  D.  do  hereby,  for  themselves,  their  heirs,  executors,  and 
administrators  jointly,  and  each  of  them  doth  hereby  for  himself 
respectively,  and  for  his  respective  heirs,  executors,  and  admin- 
istrators, covenant,"  &c. ;  or  if  there  are  more  than  two  covenant- 
ors, the  better  form  is,  for  the  reason  above  given,  "  And  the  said 
A.  B.,  C.  D.,  E.  F.,  and  G.  H.,  do  hereby,  for  themselves,  their 
heirs,  executors,  and  administrators  jointly,  and  any  two  or  three 
of  them,  do  hereby  for  themselves,  their  heirs,  executors,  and  ad- 
ministrators jointly,  and  each  of  them  doth  hereby  for  himself 
respectively,  and  for  his  respective  heirs,  executors,  and  admin- 
istrators, covenant,"  &c.  In  all  cases  of  joint  and  several  liability, 
each  party  is  individually  liable,  and  may  be  sued  alone  for  the 
whole  debt,  or  if  the  creditor  please,  he  may  sue  them  all  jointly. 
In  consequence  of  the  joint  liability,  a  release  of  one  of  the 
debtors  will  discharge  them  all;  and,  as  *thcy  are  all  dis-  r^^Qori 
charged,  the  creditor  will  thenceforth  be  unable  even  to  ^  *" 

{<j)  3  Rep.  14  b;  Smarte  v.  Edsun,  1  Lev.  30  ;  2  Wrns.  Saund,  51. 
(r)   Per  Buller,  J.,  in  Streatfield  v.  Halliday,  3  T.  Rep.  782. 


392 


OF    PERSONAL   ESTATE   GENERALLY. 


sue  aiij  of  them  severally.(s)'     As,  however,  the  several  liability 

(s)  2  Rol.  Abr.  412  (G),  pi.  5  ;  Clayton  v.  Kynaston,  2  Sulk.  574;  Nicholson  v.  Revill,  4 
Adol.  &  Ell.  683,  E.  C.  L.  K.  vol.  31  ;  Evans  v.  Bremridge,  2  Kay  &.  John.  174  ;  affirmed, 
8  De  Gex,  M.  &  G.  100. 


1  That  the  release  of  one  of  several  joint, 
or  joint  and  several  debtors,  will  operate  as  a 
release  of  all,  is  doubtless  too  firmly  estab- 
lished as  a  legal  doctrine  to  be  easily  over- 
thrown ;  The  American  Bank  v.  Duolittle,  14 
Pick.  R.  123;  Ward  v.  Johnson  et  al.,  13 
Mass.  R.  148  ;  Brown  v.  Marsh,  7  Vt.  R.  320 ; 
Bank  of  Catskill  v.  Messenger  et  al.,  9  Cow. 
R.  37;  Harrison  v.  Close  et  al.,  2  Johns.  R. 
448;  Rowley  v.  Stoddard,  7  Id.  207;  Bar- 
rington  et  al.  v.  The  Bank  of  Washington, 
14  Serg.  &  Raw.  R.  405  ;  United  States  v. 
Thompson,  Gilp.  R.  614;  Willings  et  al.  v. 
Consequa,  Pet.  C.  C.  R.  301  ;  Walker  v. 
McCulloch,  4  Greenl.  R.  421 ;  Abel  v.  Forgue, 
1  Root's  R.  502  ;  Crane,  Admr.,  v.  Ailing,  3 
Green's  R.  423  ;  Averill  v.  Lyman,  18  Pick. 
R.  352;  Goodnow  v.  Smith  et  al.,  Id.  414; 
Bronson  et  al.  v.  Fitzhugh  et  al.,  1  Hill's  R. 
185  ;  Clagett  et  al.  v.  Salmon,  5  Gill  &  Johns. 
R.  315;  McAUester  et  al.  v.  Sprague  et  al., 
34  Maine  R.  296;  Kirby  v.  Taylor  et  al  ,  6 
Johns.  Ch.  R.  242  ;  Frink  v.  Green,  5  Barb. 
S.  R.  455  ;  Bozeman  v.  The  State  Bank,  2 
Eng.  R.  328;  Hoffman  v.  Dunlop  et  al.,  I 
Barb.  S.  R.  185  ;  Benjamin  et  al.  v.  McCon- 
nell  et  al.,  4  Gilm.  R.  536;  Gray's  Exrs.  v. 
Brown,  22  Ala.  R.  262  ;  Taylor  v.  Gallaud,  3 
Iowa  R.  17;  Booth  v.  Campbell,  15  Md.  R. 
569;  Elliott  v.  Holbrook,  33  Ala.  R.  659; 
Cornell  v.  Masten,  35  Barb.  R.  157  ;  and  it 
seems  to  have  been  determined  upon  the  prin- 
ciple, that  whether  the  obligation  be  joint,  or 
joint  and  several,  the  debt  is  entire,  "and 
when  once  satisfied  or  released,  can  no  longer 
be  enforced  against  any  party  to  it ;  "  Wiggin 
V.  Tudor  et  al.,  23  Pick.  R.  444;  but  it  may 
well  be  doubted  whether  the  case  of  Burson 
V.  Kincaid,  3  Pa.  R.  57,  which  decides  that 
the  release  of  one  joint  co-obligor  is  a  release 
of  all,  but  a  release  of  an  obligor  in  a  joint 
and  several  obligation  is  not  a  release  of  all, 
is  not  more  in  accordance  with  general  prin- 
ciples of  law.  The  reasoning  of  Judge  Ken- 
nedy in  that  case,  is  certainly  entitled  to  very- 
great  respect.  "In  the  abstract,'"  he  says, 
"  it  is  certainly  true,  and  the  principle  of  law 


well  settled,  that  if  a  creditor  release  one  of 
two  joint  debtors,  whether  they  be  indebted 
upon  a  simple  contract,  bond,  or  judgment, 
it  will  also  be  a  discharge  of  the  other  from 
the  debt.  Why  is  it  so?  Because  otherwise 
the  whole  burden  of  the  debt  would  be  thrown 
upon  one  of  them,  in.stead  of  both,  which 
would  be  directly  contrary  to  their  under- 
taking and  contract.  Upon  the  same  prin- 
ciple, it  has  been  held,  that  if  the  obligee  in 
a  bond,  given  to  him  by  two  or  more  jointly, 
tear  off  the  seal  of  oiie  of  the  joint  obligors, 
or  in  any  manner  cancel  the  bond  as  to  one 
of  them,  it  discharges  all  the  rest.  It  was  in 
its  concoction  the  joint  bond  of  the  whole; 
but  the  moment  it  is  cancelled  by  the  obligee 
as  to  one  of  the  obligors,  it  ceases  to  be  the 
bond  or  deed  of  all ;  in  short,  it  ceases  to  be 
the  same  bond,  if  bond  at  all  it  can  be  called. 
By  the  original  contract  under  which  it  was 
given,  it  was  agreed,  and  made  to  be,  the 
joint  obligation  of  all;  and  without  a  new 
agreement  between  the  same  parties,  it  can- 
not be  changed,  and  made  a  bond  singly  of 
any  one  or  more  of  them,  short  of  the  whole 
number,  without  their  consent.  But  the 
obligee  or  covenantee  may  release  one  of  two 
several  obligors  named  in  a  bond,  or  one  of 
two  several  covenantors  in  a  deed,  or  cancel 
the  bond  or  deed  as  to  one,  by  tearing  off  his 
seal,  without  the  consent  of  the  other,  and  for 
this  reason  too,  that  it  does  not  increase  the 
responsibility  of  the  other  obligor  or  cove- 
nantor, or  change  in  any  manner  the  nature 
of  his  obligation  or  covenant.  It  was  the 
bond  or  deed  of  each  singly  before,  and  the 
obligee  or  covenantee  had  a  right  to  look  to 
either  singly  for  the  fulfilment  of  it,  and  the 
one,  therefore,  can  in  nowise  be  injured,  by 
cancelling  the  bond  or  deed  as  to  the  other.'' 
Since  the  above  decision  was  made,  it  has 
been  enacted  by  the  legislature  of  the  same 
State,  that  when  a  compromise  or  composition 
is  made  with  an  individual  joint  debtor,  it 
shall  not  be  so  construed  as  to  discharge  the 
other  joint  debtors,  nor  shall  it  impair  the 
right  of  the  creditor  to  proceed  against  such 


OF   JOINT    OWNERSHIP   AND   JOINT    LIABILITY.  393 

is  distinct  from  tlie  joint,  it  is  competent  to  the  creditor,  in  re- 
leasing one  of  the  debtors,  expressly  to  reserve  his  remedy  against 


of  the  joint  debtors  as  have  not  been  dis-  at  al.,  4  Gilm.  R.  536.  Some  of  the  cases 
charged;  Purd.  Dig.  Supple.  (1865),  p.  1283,  hold,  that  equity  will  not  relieve  against  re- 
secs.  3  and  5  ;  and  in  Burke  et  al.  v.  Noble,  leases  of  this  description  ;  Willings  et  al.  v. 
48  Pa.  St.  R.  168,  it  has  been  decided,  that  a  Consequa,  Pet.  C.  C.  R.  301  ;  Joy  v.  Wurtz,  2 
release  of  one  of  several  joint  debtors,  on  pay-  Wash.  C.  C.  R.  266;  while  others  deter- 
ment of  his  proportion  of  the  debt,  does  not  mine  that  equity  will  interpret  the  release 
discharge  the  others,  if  it  was  not  the  inten-  according  to  the  intentions  of  the  parties,  and 
tion  of  the  parties;  see  also,  Hope  v.  John-  the  justice  of  the  case;  Claggett  et  al.  v. 
stnn,  11  Rich.  L.  R.  135  ;  Seymour  i;.  Butler,  Salmon,  5  Gill.  &  Johns.  R.  315;  Norris's 
8  Clarke's  R.  304.  Where  all  parties  agree  Admr.  v.  Hammett  et  al.,  Charlt.  R.  267; 
to  the  release  of  one  of  the  obligors,  or  cove-  Kirby  v.  Taylor  et  al.,  6  Johns.  C.  R.  242; 
nantors,  of  a  joint  bond,  or  deed,  the  contract  but  fraud,  of  course,  avoids  the  release  ;  Car- 
will  still  be  binding  as  to  the  remaining  par-  ter  v.  Connell  et  al.,  1  Wh.  R.  392.  Any 
ties;  for,  as  the  learned  judge  continues  to  thing,  however,  which  operates  as  a  complete 
observe,  in  the  case  last  cited  :  "It  is  well  voluntary  discharge  of  one  joint  debtor,  will 
settled,  that  if  the  name  of  one  of  two  or  discharge  the  others  also;  thus,  where  the 
more  joint  obligors  be  stricken  out  or  erased,  obligee  in  a  joint  and  several  bond,  appointed 
or  his  seal  torn  from  a  bond  by  the  consent  of  one  of  the  administrators  of  one  obligor,  hav- 
the  obligee  and  the  other  obligors,  it  shall  ing  assets,  to  be  one  of  his  own  executors,  the 
cease  to  be  the  bond  of  hira  whose  name  is  so  debt  will  be  thereby  paid,  and  the  surviving 
stricken  out  or  erased  from  it,  but  shall  from  obligor  discharged  ;  Griffith  v.  Chew,  Exr.,  8 
that  time  be  the  bond  of  the  others.  And  for  Serg.  &  Raw.  R.  17  ;  and  where  there  was  a 
what  reason?  Because  it  was  their  agree-  joint  execution  against  two  persons,  and  one 
ment  that  it  should  be  so.  Their  agreement  of  them  was  taken  in  execution,  and  then 
alone,  in  this  respect,  without  more,  is  equiv-  voluntarily  discharged  by  the  creditor,  it  was 
alent  to  a  new.  and  re-execution  and  rede-  held,  that  this  was  a  release  of  both  ;  Gould 
livery  of  the  bond,  as  their  act  and  deed."  v.  Gould  et  al.,  4  N.  H.  R.  173;  so,  where 
And  see  Barrington  et  al.  v.  The  Bank  of  one  injured  by  several  jointly,  gave  a  receipt 
Washington,  14  Serg.  &  Raw.  R  405;  Bron-  to  one  of  them  "in  full"'  of  said  L.'s  tres- 
son  et  al.  v.  Fitzhugh  et  al.,  1  Hill's  R.  185  ;  pass,  when  he  and  Wilson  P.  Hunter  (another 
Rogers  v.  Hosack's  Exrs.,  18  Wend.  R.  319;  defendant)  were  in  company  together  with 
Campbell  v.  Booth,  8  Md.  R.  107.  others,  it  was  held  to  operate  as  a  discharge 

A  release,  however,  of  one  joint  contractor,  of  the  other  joint  trespassers;  Gilpatrick  v. 
to  be  binding,  must  be  a  technical  release.  Hunter  et  al.,  24  Maine  R.  18;  but  the  tak- 
that  is,  under  seal,  thereby  importing  a  good  ing  of  a  new  security  from  one  of  two  joint 
consideration  ;  Bank  of  Catskill  v.  Messenger  debtors,  will  not  operate  as  a  release,  unless  it 
et  al.,  9  Cow.  R.  .37  ;  Harrison  v.  Close  et  al.,  is  intended  to  have  that  effect ;  Parker  v. 
2  Johns.  R.  448  ;  Rowley  v.  Stoddard,  7  Id.  Cousins,  2  Graft.  R.  372  ;  Anderson  v.  Neef 
207;  Walker  v.  McCulloch,  4  Green^  R.  421  ;  et  al.,  32  Pa.  St.  R.  379  ;  Bowers  v.  Stile,  49 
ShiiW  V.  Pratt,  22  Pick.  R.  305  :  De  Zeng  v.  Id.  65  ;  Schollenberger  v.  Seldonridge,  Id. 
Bailey  et  al.,  9  Wend.  R.  336  ;  McAllester  et  83  ;  nor  will  an  assignment  by  a  joint  debtor 
al.  V.  Sprague  et  al.,  34  Maine  R.  296 ;  Frink  to  a  creditor,  of  all  his  interest,  in  con.sidera- 
V.  Green,  5  Barb  S.  R.  455;  Shock  v.  Miller,  tion  of  his  indebtedness,  have  the  effect  of  a 
10  Pa.  St.  R.  401  ;  Armstrongs.  Hiiyward,  6  release,  so  far  as  to  discharge  other  joint 
Cal.  R.  183;  McAllister  y.  Benin,  27  xMi.-si.  R.  debtors  ; -McLarren  v.  Robinson,  20  Pa.  St. 
40  ;  Drinkwuter  v.  Jordan,  46  Maine  R.  432;    R.  127. 

but  a  release  which  is  made  a  part  of  the  do-  Where  F.,  one  of  two  common  carriers, 
cree  of  a  court,  is  a  technical  release,  though  jointly  charged  by  the  i>lainlifrs  with  negli- 
nol  under  seal ;  Benjamin  et  al.  v.  McConnell    gence,  agreed  with  the  plaintids  by  a  .-•imple 


394 


OF    PERSONAL   ESTATE   GENERALLY. 


the  others;  and  in  this  case,  each  of  the  remaining  debtors  will 
continue  severally  liable.(/)  So  he  may  covenant  with  one  of 
the  debtors  never  to  sue  him  ;  and  in  such  a  case  he  will  retain  his 
remedy  against  the  others  severally. (i<)  On  account  of  the  several 
liability,  the  estate  of  a  person  who  has  become  jointly  and  sever- 

(t.)  Ex  parte  Gifford,  6  Ves.  807  ;  Thompson  v.  Lack,  3  C.  B.  540,  E.  C.  L.  R.  vol.  54 ; 
Kearsley  v.  Cole,  16  Mee.  &  Wels.  136  ;  Price  v.  Barber,  Q.  B.  1  Jur.  N.  S.  775  ;  4  E.  &  B. 
760,  E.  C.  L.  R.  vol.  82 ;  Willis  v.  De  Ciistro,  4  C.  B.  N.  S.  216,  E.  C.  L.  R.  vol.  93. 

(h)  Lacy  v.  Kynaston,  2  Salk.  575  ;  2  Wins.  Saund.  48,  n.  (1). 


contmet  in  writing,  that  if  the  latter  would 
release  T.,  the  other  carrier,  it  should  not 
impair  or  affect  any  liability  which  he,  F., 
might  have  incurred,  or  was  subject  to  ;  and 
thereupon  T.  was  released  accordingly  ;  it 
was  held  that  F.'s  agreement  not  being  under 
seal,  did  not  qualify  the  release,  so  as  to  pre- 
vent its  operating  the  discharge  of  both  F. 
andT.  from  theoriginal  cause  of  action  :  Bron- 
son  et  al.  v.  Fitzhugh  et  al.,  1  Hill's  R.  185. 
But  a  covenant  not  to  sue  one  of  several 
joint,  or  joint  and  several  debtors,  will  not 
operate  as  a  release,  but  will  only  discharge 
the  one  with  whom  the  covenant  was  made  ; 
who  may  have  his  remedy  if  it  should  be  bro- 
ken by  joining  him  as  defendant ;  Tuckerraan 
et  al.  V.  Newhalj,  17  Mass.  R  581  ;  Brown 
V.  Marsh,  7  Vt.  R.  320  ;  Bank  of  Catskill  v. 
Messenger  et  al.,  9  Cow.  R.  37  ;  Harrison  v. 
Close  et  al.,  2  Johns.  R.  44S ;  Rowley  v. 
Stoddard,  7  Id.  207  ;  Walker  v.  McCulloch,  4 
Grecnl.  R.  421  ;  Mason  et  al.  v.  Jonett's 
Admr.,  2  Dana's  R.  107  ;  Reed  v.  Shaw,  1 
Biackf.  R.  245  ;  Shed  v.  Pierce,  17  Mass.  R. 
623  ;  Sewall  v.  Sparrow,  16  Id.  24  ;  Rugglesr. 
Patten,  8  Id.  480  ;  Crane,  Admr.,  v.  Ailing,  3 
Green's  R.  423  ;  Durell  v.  Wendell  et  al.,  8 
N.  H.  R.  369  ;  Goodnow  v.  Smith  et  al.,  18 
Pick.  R.  414  ;  McAllester  et  al.  v.  Sprague  et 
al.,  34  Maine  R.  296  ;  Fink  v.  Green,  5  Barb. 
S.  R.  455  ;  Bozinan  v.  The  State  Bank,  2 
Eng.  R.  328;  Miller  v.  Fenton,  11  Paige's  C. 
R.  19  ;  Couch  y.  Mills  etal.,  21  Wend.  R.  424  ; 
Browning  &  Co.  v.  Grady,  Admr.,  10  Ala.  R. 
999  ;  Matthey  v.  Gaily,  4  Cal.  R.  62  ;  City 
of  Carondelet  v.  De?noyer.  27  McT.  R.  36  ; 
though  this  doctrine  has  been  doubted  ;  Jo- 
nas V.  Bank.,  29  Conn.  R.  25  ;  and  note  a  dis- 
tinction between  a  covenant  not  to  sue  for  a 
limited  time,  and  a  covenant  never  to  sue  ; 


Thurston  v.  James,  6  R.  I.  R.  103  ;  nor  will  a 
receipt  in  full  to  one  joint  debtor,  for  his 
share  of  the  liability,  effect  the  discharge  of 
all  ;  Rowley  v.  Stoddard,  7  Johns.  R.  207  ; 
Andrews  v.  Andrews  et  al.,  1  Root's  R.  72; 
Shotwell  V.  Miller,  Coxe's  R.  81  ;  Rogers  v. 
Hemstead,  Kirby's  R.  44  ;  Shock  v.  Miller, 
10  Pa.  St.  R.  401  ;  and  it  has  been  doubted, 
whether  it  will  effect  the  discharge  of  the  one 
to  whom  it  is  given  ;   Buckingham  v.  Oliver, 

3  E.  D.  Smith's  R.  129;  Griffith  v.  Grogan, 
12  Cal.  R.  317  ;  nor  can  a  discharge  of  one 
of  several  joint  obligors  by  operation  of  law, 
relieve  the  other  obligors  ;  Ward  v.  Johnson 
et  al.,  13  Mass.  R.  148  ;  nor  a  judgment  ob- 
tained against  one,  without  satisfaction  ;  Mc- 
Laurine  v.  Monroe,  30  Mo.  R.  462  ;  Kauff- 
man  v.  Fisher,  3  Grant's  Cas.  302  ;  but  an  ac- 
tual satisfaction  of  the  debt,  by  one  joint 
debtor,  will  release  all  ;  Walker  v.  McCulloch, 

4  Greenl.  R.  421  ;  and  so  of  payment  in  full, 
by  one  of  two  or  more  joint  trespassers,  in 
satisfaction  of  the  damage  committed  ;  Gee  v. 
Overby,  7  Eng.  R    164. 

The  law  as  regards  joint  trespassers  or 
wrongdoers,  seems  to  be  the  same  with  that 
of  joint  obligors,  as  respects  the  effect  pro- 
duced by  a  release  of  one,  or  a  covenant  en- 
tered into  with  one  to  indemnify  him  from  all 
legal  proceedings  ;  Snow  v.  Chandler,  10  N. 
H.  R.  92  ;  Bronson  et  al.  v.  Fitzhugh  et  al.,  1 
Hill's  R.  185  ;  Smithwick  v.  Ward,  7  Jones's 
Law  R.  64  ;  Lovejoy  v.  Murray,  Leg.  Intell. 
July  6,  1866  ;  but  they  may  be  sued  separately; 
Gee  V.  Overby,  7  Eng.  R.  164. 

Where  all  the  joint  obligors  or  covenantors 
are  dead,  the  proper  parties  to  proceed 
against,  are  the  representatives  of  the  last  sur- 
vivor ;  Beebe  et  al.,  Exrs.,  v.  Miller,  Minor's 
R.  364. 


OF   JOINT   OWNERSHIP   AND   JOINT   LIABILITY.  395 

ally  bound  is  not  discharged,  by  his  decease  in  the  lifetime  of  his 
co-debtors,  but  still  remains  liable  to  the  entire  debt  as  respects 
the  creditor,  and  to  a  proportion  of  it  as  respects  the  surviving 
co-debtors.  It  has  been  recently  enacted,  that  no  co-contractor 
or  co-debtor,  whether  liable  jointly  only,  or  jointly  and  severally, 
shall  lose  the  benefit  of  the  Statutes  of  Limitation  by  reason  only 
of  payment  of  any  principal,  interest,  or  other  money  by  any 
other  co-contractor  or  co-debtor. (i') 

One  of  the  most  usual  means  of  incurring  a  joint  and  several 
liability  is  the  entering  into  a  partnership.  At  law  the  liability 
of  partners  is  joint  only,  as  to  debts  incurred  by  the  partnership; 
so  that  they  ought  all  to  be  joined  as  defendants  to  an  action  at 
law  for  recovering  any  such  debt.(x)  But  a  dormant  partner, 
whose  name  *may  or  may  not  be  known,  may  either  be  r*9Q/:.-| 
joined  or  not  at  the  pleasure  of  the  creditor,(j/y  unless  the  L  "     J 

{v)  Stat.  19  &  20  Vict.  c.  97,  s.  14,  not  retrospective  ;  Jackson  v.  Woolley,  8  E.  &  B.  784, 
E.  C.  L.  R.  vol   92. 

(.r)   See  Kice  v.  Shute,  5  Burr.  2011  ;   1  Wms.  Saund.  291  b,  n.  (4). 

(y)  Be  Mautort  v.  Saunders,  1  Barn.  &  Adol.  398,  E.  C.  L.  R.  vol.  20;  Beckham  v 
Drake,  9  Mee.  &  Wels.  79  ;  11  Mee.  &  Wels.  315. 


1  A  secret  partner  is  as  much  governed  by  Beach  v.  Ilayward,    10   0.    R.  455.     On   the 

the  transactions  of  the  acting  partner,  as  if  other  hand,  dormant  partners,  when  discov- 

his  name  was  used  ;  Shead  y.  Barrinton  et  al.,  ered,  may  be  joined   as   parties   defendant; 

1   Stew.  R.    134;  but  this  law  is  confined  to  Griffith  &  Co.  v.  Buffum  et  al.,  22  Vt  R.  181  ; 

trade  and  commerce,  and  does  not  extend  to  Everett  et  al.  v.  Chapman  el  al.,  6  Conn.  R. 

speculation  in  the  purchase  of  lands  ;  Pitts  v.  347  ;  Lea  v.  Guice,  13  Smed.  &  Mar.  R.  657  ; 

Waugh  et  al.,  4  Mass.  R.  425.  Reynolds  v.  Cleveland  et  al.,  4  Cow.  R.  282  ; 

An  action  may  be   sustained  by  the  osten-  but  they  need  not  be  so  joined  ;  Sylvester  et 

sible  partners,  without  joining  those  that  are  al.  v.  Smith,  9  Mass.  R.  119  ;  for  a  dormant 

dormant  ;   Lord  v.  Baldwin,  6  Pick.  R.  350  ;  partner  is  an  allowable,  not  an  essential  par- 

Wilkes  V.  Clark,  I  Dev.  R.  178  ;  Shropshire  t-.  ty  ;  Desha  et  al.  v.  Holland,  12  Ala.  R.  613  ; 

Shepherd,  3  Ala.  R.  733  ;  Monroe  v.EzzeU,  11  Clark  et  al.  v.  Miller  etnl.,  4  Wend.  R.  628  ; 

Ala.  R.  <,03  ;   Clarkson  v.  Carter,  3   Cow.  R.  Brown  v.  Birdsall,   29  B;irb.  R.  549  ;   hence, 

84  ;  or  the  dormant  partner  may  be  joined  as  where  in  the  case  of  a  secret  partnership,  an 

coplaintifF:  Rogers    v.   Kichline,   30  Pa.   St.  execution  was  levied    on   the  goods    in  the 

R.   293  ;     in    Secor  v.    Keler,    4    Duer's    R.  name  of  the  ostensible  partner,  it  was  held 

410,  which  was  an  action  for  work  and  labor  that   it  should   not  be  postponed  for  a  subse- 

done  by  the  firm,  it  was  held  that  he  mu.st  be  quent  one,  in  the  names  of  both  the  partners  ; 

joined  ;    but,    the  contrary   has    been    held  ;  Brown's  Appeal,  17  Pa.  St.   R.  480. 
Artisan's  Bk.  v.  Treadwell,  34  Barb.  R.  553  ;         Where  one  takes  a  note  from  an  ostensible 

Boardm.'in    r.   Keeler    et   al.,    2  Vt.    R.   05;  partner,  upon  which  a  judgment  is  obtiiined, 

Clark  et  al    v.  Miller  et  al.,  4  Wend.  R.  628  ;  an    execution   issued,   and   returned,  "  )iiill// 

but  where  the  ostensible  partners  are  dead,  hniui,''''  it  has  been  held,  that  the  holder  of 

the  surviving  dormant  piirtner  may  sue  alone  ;  the  note  will   not  be   thereby  barred  from  a 


396  OF    PERSONAL    ESTATE    GENERALLY. 

contract  be  under  seal,  in  wliieh  case,  as  the  deed  is  itself  the 
contract,  and  not  merely  evidence  of  \t,{z)  those  only  can  be  sued 
on  it  who  have  sealed  and  delivered  it.  In  equity,  however,  in 
favor  of  creditors,  all  partnership  debts  are  considered  to  be  both 
joint  and  several.  On  the  decease  of  a  ])artner,  therefore,  his 
estate  will  be  liable  in  equity  to  all  the  partnership  debts  incurred 
previous  to  his  decease ;((7)  and  the  creditors  may,  if  they  please, 
resort  in  the  first  instance  to  the  estate  of  the  deceased,  leaving 
it  to  his  representatives  to  recover  from  the  surviving  partners 
their  share  of  the  debts.(6)  It  seems,  however,  that  in  analogy 
to  the  rule  in  bankruptcy,  next  stated,  the  separate  creditors  of 
the  deceased  partner  would  first  be  paid  in  full  out  of  the  estate, 
before  its  application  to  the  payment  of  any  of  the  debts  of  the 
partnersliip.(<:-) 

In  the  case  of  the  bankruptcy  of  a  trading-partnership,  the 
rule  which  is  always  followed  in  the  payment  of  the  debts  is,  that 
the  joint  assets  of  the  firm  are  in  the  first  place  liable  to  the  part- 
nership debts;  and  that  the  separate  estate  of  each  partner  is  in 
the  first  place  liable  to  his  separate  debts,  which  must  be  paid  in 
full  out  of  such  separate  estate,  before  any  of  it  can  be  applied  to- 

-^  wards  payment  of  the  debts  of  the  partnership.((/)'  *Any 
^  "*    -^  creditor  of  a  partnership  may,  however,  be  a  petitioning 

(z)    Ante,  p.  83. 

{(/)   Devaynes  v.  Noble,  1  Meriv.  529,  56.3;  2  Russ.  &  Ry.  495. 

(/;)  Wilkinson  v.  Henderson,  1  M.  &  Keen,  582;  Braitlnviiite  v.  Britain,  1  Keen,  206; 
Thorpe  v   Jackson,  2  You.  &  Coll.  553  ;  Way  v.  Basset,  5  Hare,  55. 

(c)  Gray  v.  Chiswell,  9  Ves.  118  ;  Brown  v.  Weatherby,  12  Sim.  6,  10  ;  Ridgway  v.  Clare, 
19  Beav.  Ill  ;   Wliittingstall  v.  Grover,  M.  R.  10  W.  R.  53. 

{fl)  Ex  parte  Elton,  3  Ves.  238,  241  ;  E.k  parte  Kensington,  14  Ves.  447  ;  Ex  parte  Peake, 
2  Rose,  54;  Ex  parte  Harris,  1  Mad.  583  ;  Ex  parte  Janson,  3  Mad.  229  ;  Re  Plummer,  1 
Phil.  56  ;  Ex  parte  Kennedy,  2  De  Gex,  M.  &  G.  228. 

suit  against  all  the  partners  ;  Watson  et  al.  v.  of  the  contract  ftnd  not  discovered  until  after 

Owens   et   ul.,  1    Richard.  R.    Ill;    Sheey  «;.  suit.      But  see  «?*<«,  p.  282,  note,  and  p.  285, 

Mandeville  etal.,  6  Cranch's  R.  254;  but  this  note. 

has  been  denied  in  Pennsylvania,  in  Smith  et        The  admissions  of  a  dormant  partner,  who 

al.  V.  Black,  9  Serg.  &  R.  142,  which  particu-  is  proved  to  be  so,  may  be  given  in  evidence 

larly  noticing  the   case  of  Sheey  v.  Mande-  to  bind   the  firm  ;   Kaskaskia   Bridge   Co.  v. 

ville,  nevertheless  decided  in  accordance  with  Shannon   etal.,1   Gilm.  R.  15  ;   Shepherd  v. 

what  would  seem  to  be  the  fixed  legal  princi-  Ward,  8  Wend.  R.  542. 

pie,  that  a  judgment  recovered  against  one        ■  At  law,  partners  have  a  right  to  dispose 

partner,  is  a  bar  to  a  subsequent  suit  against  of  their   property  as  they  please  ;  McDonald 

both  (where  there  are  two),  though  the  new  et  al.  v.  Beach  et  al.,  2  Bhickf.  R.  55  ;  Sigler 

defendant  was  a  dormant  partner  at  the  time  v.  Knox  Co.  Bank,  8  0.  R.  (N.  S.)  511  ;  and 


OF   JOINT    OWNERSHIP   AND    JOINT    LIABILITY. 


397 


creditor  in  respect  of  his  debt,  on  the  bankruptcy  of  any  individ- 
ual member  of  the  firm;  and  in  that  case  he  will  be  entitled  to  a 


separate  or  joint  creditors  may  attach  either 
separate  or  joint  property  ;  Bardwell  v.  Perry 
et  al.,  19  Vt.  R.  292  ;  Jarvis  et  al.,  Admrs., 
V.  Brooks  et  al.,  Admrs.,  3  Fost.  R.  131  ;  but 
eauity  will  not  allow  a  partner  to  dispose  of 
his  stock  in  trade,  for  the  purpose  of  paying 
his  own  creditors,  to  the  exclusion  of  those  of 
the  partnership  ;  Ferson  v.  Monroe,  1  Fost. 
R.  462  ;  French  v.  Lovejoy,  12  N.  H.  R.  458  ; 
Hill  V.  Beach,  1  Beasley's  R.  31  ;  Sage  v. 
Chollar,  21  Barb.  R.  596  ;  nor  to  sell,  or 
mortgage,  his  undivided  interest,  in  a  specific 
part  of  the  property  belonging  to  the  part- 
nership ;  Lovejoy  v.  Bowers,  11  N.  H.  R. 
404  j  and  any  such  attempt  to  appropriate 
the  partnership  property  to  his  individual 
benefit  will  be  regarded  as  a  fraud  upon  his 
copartners  ;  Filley  et  al.  v.  Phelps  et  al.,  18 
Conn.  R.  294  ;  Rogers  &  Sons  v.  Batchelor  et 
al.,  Admrs.,  12  Pet.  R.  221;  Yale  v.  Yale, 
13  Conn.  R.  185.  This  is  in  accordance  with 
that  equitable  principle,  that  partnership 
property  is  to  be  applied  to  the  payment  of 
partnership  debts,  before  a  separate  creditor 
can  be  allowed  to  resort  to  it  ;  Lord  v.  Bald- 
win, 6  Pick.  R.  350  ;  Morrison  v.  Blodgett  et 
al.,  8  N.  H.  R.  248;  Murray  v.  Murray  et 
al.,  5  Johns.  C.  R.  60  ;  Conkling  et  al.  v.  The 
Washington  University  et  al.,  2  Md.  C.  Decs. 
497;  Pierce,  Admr.,  et  al.,  v.  Tiernan  et  al., 
10  Gill.  &  Johns.  R.  253  ;  McDonald  et  al.  v. 
Beach  et  al.,  2  Blackf.  R.  55  ;  White  v.  The 
Union  Ins.  Co.,  1  N.  &  McCord's  R.  557  ; 
Wilson  etal.  v.  Conine,  2  Johns.  R.  282  ;  Mc- 
Culloch  V.  Dashiell,  1  Har.  &  Gill's  R.  96  ; 
Tucker  v.  Oxley,  5  Cranch's  R.  35  ;  White  v. 
Dougherty  et  al..  Mart.  &  Yerg.  R.  309  ;  Do- 
ner etal.  V.  Stauffer  et  al.,  1  Pii.  R.  198; 
Woodrop  V.  Ward,  3  Desauss.  R.  203  ;  Gar- 
diner et  al.  V.  Smith,  12  La.  R.  370;  Eman- 
uel V.  Bird,  Admr.,  19  Ala.  R.  596  ;  Grosve- 
nor  &  Co.  V.  Austin,  6  0.  R.  103  ;  Muir  v. 
Leitch  et  al.,  7  Barb.  S.  R.  341  ;  Buchan  v. 
Sumner,  2  Barb.  C.  R.  166  ;  Christian  v.  Ellis, 
1  Oratt.  R.  396  ;  Nicoll  et  al.  v.  Mumford,  4 
Johns.  C.  R.  522 ;  Deveau  v.  Fowler,  2 
Paige's  C.  R.  400  ;  Jackson  v.  Cornell  et  al., 
1  Sandf  C.  R.  348  ;  Murril  et  al.  v.  Neill  et 
al.,  8   How.  R.  414;  Washburn  et  al.  v.  The 


Bank  of  Bellows  Falls  et  al.,  19  Vt.  R.  278  ; 
Wilder  et  al.  v.  Keeler  et  al.,  2  Paige's  C.  R. 
167  ;  Smith  v.  Barker  et  al.  10  Maine  R.  158  ; 
Lucas  et  al.  v.  Atwood  et  al.,  2  Stew.  R.  378  ; 
Glum  V.  Gill,  2  Md.  R.  15  ;  Burtus  v.  Tis- 
dale  et  al.,  4  Barb.  S.  R.  571  ;  Linford  v. 
Linford,  4  Dutch.  R.  113;  Wintersmith  v. 
Pointer,  2  Met.  (Ky.)  R.  457. 

But  this,  like  every  other  general  rule,  ad- 
mits of  exceptions  ;  and  it  is  hardly,  indeed, 
susceptible  of  strict  application,  in  any  cases 
but  those  of  bankruptcy,  insolvency,  and  exe- 
cution. The  consequences  of  its  application 
to  partnerships  would  be  highly  injurious  to 

trade,  and  embarrassing  to  justice It 

has  been  repeatedly  settled  here,  as  well  as  in 
England,  that  the  partner  may  be  sued  for 
separate  debts,  that  the  partnership  effects 
may  be  taken  in  execution  and  sold  by  moie- 
ties ;  and  that  the  purchaser  of  the  moiety, 
under  the  execution,  shall  be  considered  as 
tenant  in  common  with  the  partner  ;"  Me- 
Carty  I'.  Emlen,  2  Dal.R.  278.  "Each  part- 
ner is  entitled  to  the  possession  of  the  partner- 
ship property  ;  if  one  excludes  the  other,  no 
action  at  law  lies — the  remedy  is  in  equity. 
So,  if  the  sheriff,  by  virtue  of  an  execution 
against  one  of  several  partners,  takes  posses- 
sion of  the  property,  an  action  at  law,  I  appre- 
hend, does  not  lie  against  him.  The  court  from 
which  the  execution  issued  would  stay  pro- 
ceedings upon  it,  to  give  time  to  have  an  ac- 
count taken  in  equity  ;  but  if  no  such  stay  is 
obtained,  the  ofl5cer  can  sell  the  right  of  the 
partner  who  is  defendant  in  the  execution. 
According  to  the  rule  in  equity,  the  partner- 
ship accounts  should  all  be  liquidated  before 
a  sale  on  execution,  .  .  .  but  if  the  sale 
should  be  made,  and  the  purchaser  should 
take  the  property,  Vfould  he  be  a  trespasser  ? 
or  would  he  not  be  tenant  in  common  with 
the  other  partner,  of  the  partnership  property, 
subject  to  the  claims  of  the  creditors  of  the 
partnership?  The  sheriff  or  other  officer,  in 
making  a  levy,  and  taking  the  property  to  a 
place  of  safe  deposit,  is  surely  not  a  tres- 
passer ;"  Scrugham  v.  Carter,  12  Wend.  11. 
133;  Hughes  V.  Boring,  10  Cal.  R.  81. 

That    the   piirtner.vhip   giiod.x    niny    be    nt- 


198 


OF    TERSONAL    ESTATE   GENERALLY. 


dividend  on  his  debt  out  of  the  estate  of  such  bankrupt  ratably 
"with  his  separate  creditors. (c)     And  the  other  partnership  credi- 

(e)  Ex  parte  Ackerman,  14  Ves.  604  j  Ex  parte  Detastet,  17  Ves.  247. 


tached,  or  levied  upon  under  an  execution, 
for  the  separate  debt  of  one  of  the  partners, 
is  not  doubted  ;  Bradbury  v.  Smith,  21 
Maine  R.  122  ;  Douglass  v.  Winslow,  20  Id. 
89  ;  Reed  v.  Johnson,  24  Id.  .322  ;  Reed  v. 
Shepardson,  2  Vt.  R.  120  ;  Sehatzell  &  Co.  v. 
Bolton,  2  McCord's  R.  478  ;  Knox  v.  Schep- 
ler,  2  Hill's  R  595  ;  Morgan  v.  Watniough,  5 
■\Vhart.  R.  525;  Dow.  Admr.,  v.  Sayward,  14 
N.  H.  R.  9  ;  Clark  v.  Lyman,  Admr.,  8  Vt. 
R.  290  ;  Whitney  v.  Ladd,  10  Id.  165  ;  Bur- 
rail  V.  Acker,  23  Wend.  R.  606  ;  Place  v. 
Sweetzer  et  al.,  16  0.  R.  142  ;  Clark  v.  Allee, 
3  Barring.  R.  80  ;  Knox  et  al.  v.  Summers,  4 
Yeat.  R.  477  ;  Andrews  v.  Keith,  .34  Ala.  R. 
722  ;  Wiles  v.  Maddox,  26  Mo.  R.  77  ;  but 
the  preponderance  of  authority  would  seem 
to  determine,  that  the  sheriff  cannot  take  the 
goods  out  of  the  possession  of  the  other  part- 
ners j  Silter  et  al.  v.  Walker,  1  Freem.  C. 
(Missi.)  R.  77  ;  Deal  v.  Bogue,  20  Pa.  St.  R. 
233  ;  Newman  et  al.  v.  Bean,  1  Tost.  R.  93  ; 
Thomas  v.  Lusk,  13  La.  An.  R.  277 ;  and 
cases  above  cited  ;  and  he  can  only  sell  the 
interest  of  the  partner  who  is  defendant  in 
the  execution  ;  Doner  et  al.  v.  StaufTer  et  al., 
Haskins  v.  Everett,  4  Sneed's  R,  631  ;  which 
has  been  held  in  a  case  where  the  sheriffs  sale 
was  by  sample  ;  Treadwell  v.  Roscoe,  3  Dev. 
R.  50  ;  but  the  sheriff  should  levy  upon  "  all 
the  partnersldp  effects,  .  .  .  because  the  moie- 
ties are  undivided  ;  for  if  he  seize  but  a 
moiety,  and  sell  that,  the  other  partner  will 
have  a  right  to  a  moiety  of  that  moiety  ;  but 
he  must  seize  the  whole,  and  sell  a  moiety 
thereof  undivided,  and  the  vendee  will  be  ten- 
ant in  common  with  the  other  partner  ;  Slaver 
V.  White  et  al.,  6  Munf.  R.  Ill  ;  Phillips  v. 
Cook,  24  Wend.  R.  393  ;  Scrugham  v.  Carter, 
12  Id.  133.  Where  a  sale  has  been  made  un- 
der such  an  execution,  the  proceeds  must  be 
paid  over  to  the  execution  creditor,  and  the 
recourse  of  the  partners,  or  of  the  creditors 
of  the  firm,  is  against  the  partnership  prop- 
erty, for  the  purchaser  has  only  acquired  an 
interest  in  the  assets,  after  the  payment  of  the 
partnership  debts  and  liabilities  ;  Phillips  v. 
Cook,  24  Wend.  R.  393  ;  Wilson  et  al.  v.  Co- 


nine, 2  Johns.  R.  282  ;  Doner  et  al.  v,  Stauf- 
fer  et  al.,  1  Pa.  R.  198  ;  Lothrop  v.  Wight- 
man,  41  Pa.  St.  R.  297.  But  an  attachment 
by  a  creditor  of  one  of  the  partners,  will  not 
prevail  against  a  subsequent  attachment  of  a 
joint  creditor  ;  Pierce  v.  Jackson,  6  Mass.  R. 
242  ;  Allen  et  al.  v.  Wells  et  al.,  22  Pick. 
R.  455  ;  nor  will  it  be  good  against  partner- 
ship property  in  the  hands  of  a  creditor  of  the 
firm,  who  may  retain  for  his  debt  ;  Morgan  v. 
Watmough,  5  Whart.  R.  525  ;  and  see  Clark 
V.  Allee,  3  Earring.  R.  80. 

That  the  sheriff  in  an  execution  against  the 
partnership  property,  for  a  debt  due  by  an 
individual  partner,  "can  sell  only  the  actual 
interest  which  such  partner  has  in  the  part- 
nership property,  after  the  accounts  are  set- 
tled, or  subject  to  the  partnership  debts, 
which  are  first  to  be  paid,"  has  been  repeat- 
edly decided  j  Jarvis  v.  Hyer  et  al.,  4  Dev. 
R.  364;  Barber  v.  The  Hartford  Bank,  9 
Conn.  R.  407;  Lynden  v.  Gorham  et  al.,  1 
Gallis's  R.  367  ;  Fisk  v.  Herrick,  6  Mass.  R. 
271  ;  Church  et  al.  v.  Knox  et  al.,  2  Conn.  R. 
5)4;  Brewster  et  al.  v.  Hammett  et  al.,  4  Id. 
240  ;  In  the  matter  of  Smith,  16  Johns.  R. 
102  ;  Nicoll  et  al.  v.  Mumford,  4  Johns.  C. 
R.  325  ;  Goodwin  v.  Richardson,  Admr.,  11 
Mass.  R.  472  ;  Gibson  v.  Stevens,  7  N.  H.  R. 
352  ;  Moody  v.  Payne,  2  Johns.  C.  R.  548  ; 
Knox  V.  Schepler,  2  Hill's  R.  596  ;  Doner  et 
al.  V.  Stauffer  et  al.,  1  Pa.  R.  198  ;  Wilter  v. 
Richards,  10  Conn.,  R.  37  ;  Filley  et  al.  v. 
Phelps  et  al.,  18  Conn.  R.  294;  Rogers  & 
Sons  V.  Batchelor  et  al.,  Admrs.,  12  Id.  221 ; 
Yale  V.  Yale,  13  Conn.  R.  185  ;  Burtus  v.  Tis- 
dale,  et  al.,  4  Barb.  S.  R.  571  ;  Clark  v.  Al- 
lee, 3  Harring.  R.  80  ;  Treadwell  v.  Roscoe, 
3  Dev.  R.  50  ;  Merrill  et  al.  v.  Rinker,  1 
Baldw.  R.  534  ;  Sitler  et  al.  v.  Walker,  1 
Freem.  C.  (Missi.)  R.  77;  Deal  r.  Bogue,  20 
Pa.  St.  R.  233;  Lucas  v.  Laws,  27  Id.  211  ; 
Nixon  V.  Nash,  12  0.  (N.  S.)  R.  647  ;  this  in- 
terest of  the  individual  partner,  is  his  share  of 
the  surplus  after  the  payment  of  the  partner- 
ship debts,  and  settlement  of  the  partnership 
equities:  Newman  et  al.  v.  Bean,  1  Fost.  R. 
93  ;  Morrison  v.  Clodgett  et  al.,  8  N.  H.  R. 


OF   JOINT    OWNERSHIP    AND   JOINT    LIABILITY. 


399 


tors  may  prove  their  debts  on  such  separate  bankruptcy  in  order 
to  have  a  vote  in  the  choice  of  creditors'  assignees,  and  to  he 


248;  Nicoll  et  al.  v.  Mumford,  4  Johns.  C.  K. 
525;  White  v.  Dougherty  et  al.,  Mart.  & 
Yerg.  K.  309  ;  Doner  et  al.  v.  Stauffer  et  al., 
1  Pa.  R.  198;  Witters.  Richards,  10  Conn. 
R.  .37  ;  Filley  et  al.  v.  Phelps  et  al.,  18  Id. 
294  ;  United  States  v.  Huck  et  al.,  8  Pet  R. 
271 ;  Rogers  &  Sons  v.  Batchelor  et  al., 
Admr.,  12  Id.  221  ;  Yale  v.  Yale,  13  Conn. 
R.  185  ;  Buchan  v.  Sumner,  2  Barb.  C.  R. 
]66;  Sutcliflfe  v.  Dohrman,  16  0.  R.  181; 
Place  V.  Sweetzer  et  al..  Id.  142  ;  Clark  v. 
Alice,  3  Harring.  R.  80  ;  Sitler  et  al.  v. 
Walker,  1  Freern.  C.  R.  77  ;  Atwood  v.  Mere- 
dith,  37  Missi.  R.  635  ;  Pitman  v  Robicheau, 
14  L.  An.  R.  108  ;  this  is  all  that  a  partner 
can  pass  by  assignment;  Rodriguez -«.  Heffer- 
man,  5  Johns.  C.  R.  417  ;  Nicoll  et  al.  v. 
Mumford,  4  Id.  525  ;  Doner  et  al.  v.  Stauffer 
et  al.,  1  Pa.  R.  198  ;  Burtus  v.  Tisdale  et  al., 

4  Barb.  S.  R.  671  ;  and  the  purchaser  becomes 
a  tenant  in  common  with  the  remaining  part- 
ners ;  Gilmore  v.  The  N.  A.  Land  Co.  et  al.. 
Pet.  C.  C.  R.  460  ;  Phillips  z-.  Cook,  24  Wend. 
R.  393  ;  McCarty  v.  Emlen,  2  Dal.  R.  278  ; 
Slaver  v.  White  et  al.,  6  Munf.  R.  Ill  ;  Sit- 
ler et  al.  V.  Walker,  1  Freem.  C.  R.  77  ; 
Remheimer  v.  Hemingway,  35  Pa.  St.  R.  432. 

The  rule  that  partnership  assets  are  to  be 
applied  to  the  payment  of  the  partnership 
debts,  before  the  creditor  of  one  of  the  part- 
ners can  derive  any  benefit  therefrom,  arises 
from  the  equities  subsisting  between  the 
partners,  and  not  from  any  preference  given 
to  the  joint  creditors;  Hoxie  v.  Carr  et  al., 
1  Sumn.  R.  171  ;  Doner  et  al.  v.  Stauffer  et 
al.,  1  Pa.  II.  198;  Allen  et  al.  v.  The  Centre 
Valley  Co.  et  al.,  21  Conn.  R.  130  ;  Wash- 
burn et  al.  V.  The  Bank  of  Bellows  Falls  et 
al.,  19  Vt.  R.  278  ;  Reese  et  al.  v.  Bradford 
et  al.,  13  Ala.  R.  837 ;  Bardwell  v.  Perry  et 
al.,  19  Vt.  R.  292  ;  Glenn  v.  Gill,  2  Md.  R. 
15;  Yearsley's  Est.,  1  Am.  L.  Reg.  636; 
Backus  V.  Murphy.  38  Pa.  St.  R.  397  ;  Potts 
V.  Blackwell,  4  Jones's  Eq.  R.  58  ;  Iluskill 
V.  Johnson,  24  Geo.  R.  825  ;  Miller  v.  Estill, 

5  0.  R.  (N.  S.)  508  ;  or,  to  use  the  words  of 
Judge  Lane,  in  Grosvenor  &  Co.  v.  Austin's 
Admr.,  6  0.  R.  112,  a  copartnership  "credi- 
tor, i.s  permitteda  specific  preference,  to  sub- 


ject that  joint  fund  to  the  payment  of  his 
joint  claim,  or  debt,  and  this,  not  because 
the  creditors'  rights  are  enlarged  by  the  ex- 
istence of  the  joint  fund,  but  because  the 
interests  of  the  partners  are  so  connected 
with  its  distribution,  that  it  is  necessary  to 
adopt  this  rule,  to  secure  the  rights  of  the 
debtors  between  themselves.  Hence  the 
doctrine  has  been  introduced,  that  the  part- 
nership property  should  be  first  applied  in 
satisfaction  of  the  partnership  debts  ;  not  for 
the  creditors'  sake,  but  because  there  is  a 
fund,  which  both  parties  have  a  right  recipro- 
cally, to  apply  for  the  benefit  of  a  third 
party;"  and,  with  similar  reasoning  the 
case  of  Rice  v.  Barnard  et  al.,  20  Vt.  R. 
479,  decided,  that  "  the  right  of  partnership 
creditors,  to  claim  a  preference  over  the  credi- 
tors of  the  individual  members  of  the  firm, 
in  the  distribution  of  the  partnership  prop- 
erty, is  wholly  dependent  upon  the  right  of 
the  individual  partners,  to  enforce  a  lien 
upon  the  partnership  funds  for  the  payment 
of  the  partnership  liabilities,  before  the  indi- 
vidual debts  ;  and  if  the  contract  of  partner- 
ship be  of  such  a  nature,  that  the  partners 
can  enforce  no  such  right  as  between  them- 
selves, the  partnership  creditors  can  claim 
no  such  preference."  But  in  Cammack  v. 
Johnson  et  al.,  1  Green's  C.  R.  167,  the 
chancellor  seemed  to  be  of  a  difi"erent  opinion, 
ruling,  that  "in  an  open  firm,  the  credit  is 
given  to  the  firm,  and  to  the  goods  they  are 
possessed  of,  and  a  partnership  creditor  shall 
be  first  paid  out  of  them  ;  but,  if  the  partner 
be  unknown,  the  credit  is  given  to  the  visible 
partner  only,  and  the  goods  in  his  possession 
are  supposed  to  be  his  own,  and  in  such  case, 
the  discovery  of  such  latent  partner,  cannot 
give  any  preference  to  a  partnership  creditor. 
As  between  the  partners  themselves,  I  see 
no  reason  to  make  any  distinction  in  their 
rights,  whether  they  are  dormant  or  not  ; 
but  as  to  the  public,  it  is  not  only  highly 
proper,  but  necessary,  to  prevent  injustice 
towards  creditors,  that  this  difference  should 
be  observed."  The  weight  of  authority, 
however,  is  against  the  case  last  cited  ;  and 
hence,  it   would  seem  to   follow,  that  if  the 


400 


OF   PERSONAL   ESTATE    GENERALLY. 


heard  against  tlie  order  for  the  bankrupt's  discharge ;(/)  but  they 

(J)  Stat.  12  &  13  Viet.  c.  106,  s.  140,  repealing  stats.  6  Geo.  IV,  c.  16,  s.  62,  and  5  &  6 
Vict.  c.  122,  s.  39,  to  the  same  eflfect.     See  ante,  pp.  146,  147. 


partnership  equity,  as  between  the  individual 
partners,  was,  from  any  cause,  to  cease,  the 
preferred  lien  of  the  joint  creditors,    would 
also  expire ;  and  this  we  find  to  be  the  fact, 
for,  where  one  partner,  there  being  two,  sells 
his  interest  to  the  other,  the  lien  of  the  joint 
creditors  is  gone  ;  Glenn  v.  Gill,   2  Md.  R. 
15  ;  ^and  see  also  the  opinion  of  Chief  Justice 
Gibs'on,  in  the  ease  of  Doner  et  al.  v.  StauflFer 
et    al.,    1    Pa.    R.    198;  but   this   has    been 
doubted  ;  see  Conroy  v.   Woods,  13  Cal.  R. 
626  ;  Cooper's  Ap.,   26   Pa.    St.   R.   262,    in 
which   last  case  it  was  decided,   that  where 
partnership  property  was  sold    on    separate 
executions  against   the  individual    partner^, 
at  the  same  time,  by  a  joint  sale,  it  leaves 
the  interests  standing  in  the  proceeds,  as  it  ex- 
isted in  the  property,  at  the  time  of  the  levy. 
Joint  creditors  may,  however,  resort  to  the 
separate  property  of  the  individual  partners, 
before  the  payment  of  the  separate  creditors, 
for  there   is  no  subsisting  equity  to  interfere 
with  their  claim,  as  was  held  in   the  ease  of 
Allen  et  al.  v.  Wells  et  al.,  22  Pick,  R.  455. 
"It   is  urged,    however,   on  the  part  of  the 
defendants,  that  as  this  court,  as  a  court  of 
law,  have  long  since  recognized  the  principle, 
that  an  attachment  of  the  goods  of  a  partner- 
ship, by  a  creditor  of  one  of  the  partners,  is 
not  valid  as  against  an  after  attachment  by 
a  partnership  creditor,  it  should  also  adopt 
the  converse  of  the  proposition,  giving  a  like 
preference  to  separate  creditors  in  respect  of 
the   separate   property.     But  we   think  that 
there   is  a  manifest   distinction   in   the  two 
cases.     The  restriction  upon  separate  credi- 
tors  as   to  the   partnership  property,   arises 
not  merely  from   the   nature  of  the  debt  at- 
tempted to  be  secured,  but  also  from  the  situa- 
tion of  the  property  proposed  to  be  attached. 
In  such  a  case  a  distinct  moiety  or  other  pro- 
portion,  cannot  be  taken   and  sold,   as   one 
partner  has  no  distinct  separate  property  in 
the  partnership  eflFects.   His  interest  embraces 
only  what  remains  upon  the  final  adjustment 
of  the   partnership   concerns.      But    on    the 
other  hand,  a  debt  due  from  the  copartner- 
ship, is  the  debt  of  each  member  of  the  firm, 


and    every  individual  member,  is   liable   to 
pay  the  whole  amount  of  the  same,   to    the 
creditor  of  the  firm.     In  the  case  of  the  co- 
partnership, the  interest  of  the  debtor  is  not 
the  right  to  any  specific  property,  but  to  a 
residuum,  which  is  uncertain  and  contingent, 
while  the  interest  of  one  partner  in  his  un- 
divided property,  is  that  of  a  present  absolute 
interest  in  the  specific  property.     Each  sepa- 
rate memberof  the  copartnership,  being  thus 
liable  for  all  debts  due  from  the  copartner- 
ship, and  no  objection   arising  from  any  in- 
terference with  the  rights  of  others — as  joint 
owners,  it  seems    necessarily  to  follow,  that 
his  separate  property  may  be  well  adjudged 
to  be  liable  to  be  attached,  and  held  to  secure 
a  debt    due   from    the    copartnership;"  and 
see  also,  Bardwell  v.  Perry  et  al.,  19  Vt.  R. 
292,  and  the   cases  subsequently  cited  ;  but 
see  to   the  contrary,  Jarvis  et  al.,    Admrs., 
V.   Brooks  et  al.,   Admrs.,    1  Fost.   R.    141. 
Where,  however,  a  firm  is  bankrupt,  or  in- 
solvent,   or  a  voluntary   assignment  for  the 
benefit  of  creditors  has  been  made,  or  there 
are  other  circumstances  necessarily  causing 
an  application   of  the   principles   of  equity, 
the  separate   property  is  to   be  first  applied 
to  the  payment  of  the  individual  creditors, 
before   the   partnership  creditors  can   resort 
to  it,  and  under  such  circumstances  the  rule 
is,  that  in  cases  of  distribution,  partnership 
funds  are  first  applicable  to  partnership  debts, 
and  private  funds  to  private   debts  ;  Wood- 
rob  V.  Ward,  Exrs.,  3  Desauss.  R.  203  ;  Hall 
V.  Hall,  2  McC.  C.  R.  302  ;  Tunno  v.  Treze-. 
vant,    2  Desauss.   R.   270  ;  Egbert  et  al.  v. 
Wood  et  al.,  3  Paige's  C.  R.  517;  Murril  et 
al.  V.  Neill  et  al.,  8  How.  R.  414;  Emanuel 
V.  Bird,  Admr.,  19   Ala.  R.  596  ;  McCulloch 
V.  Dashiell,  1  Har.  &,  Gill's  R.  96  ;  Cleghorn 
V.  The  Insurance  Bank  of  Columbus,  9  Geo. 
R.  319  ;  Payne  v.  Matthews,  6  Paige's  C.  R. 
20  ;  Jackson  v.  Cornell  et  al.,  1  Sandf.  C.  R. 
348  ;  Wilder  et  al.  v.  Keeler  et  al.,  3  Paige's 
C.  R.    167;  Bell  et  al.,   Exrs.,  v.  Newman, 
Admr.,  5  Serg.  &  Raw.  R.  78;  Black's  Ap., 
44   Pa.  St.  R.    509  ;   Walker  v.  Eyth,  25  Id. 
216  ;  Tingizer's  Ap.,  28  Id.  524;  Crooker  v. 


OF   JOINT   OWNERSHIP   AND   JOINT   LIABILITY.  401 

can  receive  no  dividends  till  the  separate  creditors  have  been 
paid  in  full.  But  if  any  creditor  has  a  joint  and  several  security, 
which  would  enable  him,  at  law,  to  sue  any  partner  severally,  he 
may,  at  his  option,  prove  his  debt  against  the  separate  estate  of 
any  such  partner  instead  of  against  the  firm  jointly  ;(^)  but  he 
cannot  prove  against  both  together.(A)  The  rule  that  the  joint 
assets  of  the  firm  are  in  the  first  place  liable  to  the  partnership 
debts  applies  equally  where  there  has  been  a  change  in  the  part- 
nership previous  to  the  bankruptcy.  The  stock  handed  over  to  the 
new  firm  is  primarily  liable  to  all  the  debts  incurred  by  them ; 
and  the  creditors  of  the  old  firm  must  first  have  recourse  to  such 
assets,  if  any,  as  may  still  belong  to  the  old  firm,  and  cannot 
touch  the.  property  of  the  new  partnership  till  all  its  creditors 
have  been  fully  paid.(?)  The  addition  or  withdrawal  of  a  part- 
ner to  or  from  a  firm  in  diflSculties  may  thus  occasion  serious 
detriment  to  its  creditors.^ 

The  Bankruptcy  Act,  1861,  provides,  that  if  any  *debtor 
shall,  at  the  time  of  adjudication,  be  liable  upon  any  bill  ■-         J 
of  exchange,  or  promissory  note  in  respect  of  distinct  contracts, 
as  member  of  two  or  more  firms  carrying  on  separate  and  dis- 

(g)  Ex  parte  Hay,  15  Ves.  4. 

(A)  Ex  parte  Bevan,  10  Ves.  107  ;  Ex  parte  Husbands,  2  Glyn  &  Jam.  4. 
(i)  Ex  parte  Freeman,  Buck.  471 ;  Ex  parte  Fry,  1  Glyn  &  Jam.  9(i ;  Ex  parte  Janson, 
3  Mad.  229  j  Ex  parte  Sprague,  4  De  Gex,  Mac.  &  Gord.  866. 


Crooker,  46    Maine    R.    250  ;    Treadwell   v.  28  ;  but  in  New  York,  by  statute,  even  in 

Brown,  41  N.  H.  R.  12  ;  Toombs  v.  Hill,  28  cases  of  insolvency,  &c.,  a  joint  creditor  may 

Geo.  R.  371  ;  Tillinghast  v.  Champlin,  4   R.  proceed  against  the  separate  property  of  an 

I.  R.  173  ;  Van  Wagner  f.  Chapman,  29  Ala.  absconding  debtor  ;  In  the  matter  of  Chip- 

R.  172  ;  Pahlman  v.  Graves,  26  111.  R.  405  ;  man,  14  Johns.   R.    217  ;  In   the    matter   of 

and   in  Emanuel  v.  Bird,    Admr.,  svpra,   it  Smith,  16  Id.  102;  Robbins  et  al.  v.  Cooper 

was  held,  that  when  surviving  partners  are  et  al.,   6   Johns.   C.  R.   186;  and    see   also, 

insolvent,  and  there  is  no  joint  fund  to  which  Dahlgreen,  Admr.,  v.  Duncan  et  al.,  7  Smed. 

the  partnership  creditors  may  resort,    they  &  Mar.  R.  280. 

are  entitled  to  share  in   the  assets  of  the  de-        In  the   case  of  Brinkerhoff  v.   Marvin,    5 

cea.sed  partner  pari  passu  with  his  separate  Johns.  C.  R.  320,  it  was   held,  that    "where 

creditors  ;  and  see  McCulloch  v.  Dashiell,  1  a   creditor    has  separate  judgments    against 

Har.  &  Gill's  R.  90  ;  the  mere  insolvency  of  each   of  two  partners,  the  partnership  prop- 

a  firm  is  sufficient  to  defeat  an  attachment  erty  will  be  bound,  to  the  same  extent  as  if 

made  by  a  creditor  of  one  of  the  firm,  al-  the  amount  of  both  judgments  had  been  in- 

though  the  joint  creditors  have  commenced  eluded  in  a  joint  judgment  for  the  whole, 

no  action  for  the   recovery  of  their  debts;  against  both  parties." 
Commercial   Bank   v.  Wilkins,  9   Maine  R.       i  See  ante,  p.  117,  note  1. 

26 


402  OF   PERSONAL   ESTATE    GENERALLY. 

tinct  trades,  and  having  distinct  estates  to  be  wound  up  in  bank- 
ruptcy, or  as  a  sole  trader  and  also  as  a  member  of  a  firm,  the 
circumstance  that  such  firms  are  in  whole  or  in  part  composed  of 
the  same  individuals,  or  that  the  sole  contractor  is  also  one  of  the 
joint  contractors,  shall  not  prev(?nt  proof  and  receipt  of  dividend 
in  respect  of  such  distinct  contracts  against  the  estates  respect- 
ively liable  upon  such  contracts.  It  also  provides  that,  in  every 
case  where  joint  and  separate  estates  have  to  be  administered, 
and  where  the  court  shall  not  otherwise  direct,  dividends  of  the 
joint  and  separate  estates  shall  be  declared  at  one  and  the  same 
sitting.(j)  But  the  general  rules  with  respect  to  the  payment  of 
the  joint  and  several  creditors  do  not  appear  to  be  altered. 

The  liability  to  the  debts  of  a  partnership  may  be  incurred  by 
being  an  «ostensible  partner,  although  no  share  of  the  profits  be 
received.  Thus,  if  a  person  allow  his  name  to  be  used  as  one  of 
a  firm,(A')  or  to  be  painted  over  the  door  of  a  shop,(?)  he  will  be 
liable  to  the  debts  of  the  firm;  for  credit  may  thus  be  given  to 
the  firm  on  the  strength  of  his  character  as  a  solvent  person.  On 
the  same  principle,  if  a  person  have  once  been  known  to  be  a 
partner  in  the  firm,(7n)  his  liability  to  its  debts  will  continue  after 
his  withdrawment,  unless  he  takes  proper  means  to  inform  the 
creditors  that  he  has  ceased  to  be  a  partner. (n)  But  the  circum- 
stance  of  the  name  of  a  *deceased  partner  remaining  in 
*-  -■  the  firm  will  not  render  his  estate  liable  to  the  debts  of 
the  survivors. (o)  And  if  a  trader  direct  by  his  will  that  his  trade 
shall  be  carried  on  by  his  executor,  the  executor,  who  ostensibly 
carries  on  the  trade,  will  be  liable  for  the  debts  he  may  thereby 
incur  as  fully  as  if  he  were  carrying  on  the  trade  for  his  own 
benefit  ;(^)  but  so  much  only  of  the  estate  of  the  testator  will  be 
liable  to  such  debts  as  he  may  have  directed  to  be  employed  in 

(j)  Stat.  24  &  25  Vict.  c.  134,  ss.  152,  177. 

(/)   Parkin  v.  Carruthers,  3  Esp.  248  ;  Young  v.  Axtell,  cited  2  H.  Black    242. 

(/)   See  Mclver  v.  Humble,  16  East,  169,  174. 

(?«)  Evans  v,  Drummond,  4  Esp.  89 ;  Brooke  v.  Enderby,  2  Brod.  &  Bing.  70,  E.  C.  L. 
R.  vol.  6  ;  4  Moore,  501 ;  Carter  v.  Whalley,  1  Barn.  &  Adol.  11,  E.  C.  L.  R.  vol.  20. 

(71)   Godfrey  v.  Turnbull,  1  Esp.  371 ;  Mclver  v.  Humble,  16  East,  169. 

(o)  Vulliamy  v.  Noble,  3  Mer.  614;  Webster  w.  Webster,  3  Swanst.  490,  n. 

{p)  10  Ves.  119.  And  at  law  he  will  be  liable,  though  his  name  do  not  appear;  Wight- 
man  V.  Townroe,  1  Mau.  &  Selw.  412. 


OF   JOINT   OWNERSHIP   AND   JOINT    LIABILITY.  403 

the  business.(5^)  The  rest  of  the  testator's  estate  is  held  to  be 
exempt,  on  the  ground  of  the  great  inconvenience  which  would 
arise  from  holding:  it  liable  after  its  distribution  among-st  the  leo-- 
atees.  But  in  strict  principle,  this  exemption  is  at  variance  with 
the  rule  next  stated,  that  a  liability  is  incurred  by  any  participa- 
tion in  the  profits. 

A  liability  to  the  debts  of  a  partnership  is  also  incurred  by  a 
participation  in  the  profits,  although  the  circumstance  of  such 
participation  may  be  unknown  to  the  creditor8.(r)  Thus,  if  a 
person  place  money  in  a  partnership,(5)  or  leave  it  there  on  re- 
tiring,(^)  with  a  stipulation  to  have  a  compensation  for  it,  under 
whatever  name,  subject  to  abatement  or  enlargement  as  the 
profits  may  fluctuate,  he  will  be  liable  as  a  partner.  If,  however, 
he  leaves  no  money  in  the  concern,  but  is  to  receive  a  compensa- 
tion for  his  services,  or  otherwise,  a  nice  distinction  is  then 
drawn  between  taking  a  share  of  the  profits  as  such,  and  taking 
a  percentage  upon,  *or  a  salary  varying  with,  the  profitg.  p^.^Q^,-, 
He  who  takes  a  share  of  the  profits  as  such  is  liable  as  a  '-  "  -' 
partner;(i<)  but  he  who  takes  an  equivalent  in  the  shape  of  per- 
centage or  salary,  though  varying  with  the  profits,  escapes  the 
liability. (r)*    And  if  a  trading  concern  be  carried  on  for  the 

(y)  Ex  parte  Garland,  10  Ves.  110;  Ex  parte  Richardson,  Buck,  202;  Cutbush  v.  Cut- 
bush,  1  Beav.  184;  Re  Butterfield,  11  Jurist,  955;  Kirkman  v.  Booth,  11  Beav.  273;  Mc- 
Neillie  v.  Acton,  4  De  Gex,  M.  &  G    744. 

(r)   Beckham  v.  Drake,  9  Mee.  &  Wels.  79  ;   11  Mee.  &  Wels.  315. 

(s)  Grace  v.  Smith,  2  Wm.  Black.  998,  1001  ;  Waugh  v.  Carver,  2  II.  Black.  235. 

(t)  Re  Colbeck,  Buck,  48. 

(?«)  Ex  parte  Rowlandson,  1  Rose,  89,  91  ;  Barry  v.  Nesham,  3  C.  B.  641,  E.  C.  L.  R.  vol. 
54  :  Heyhoe  v.  Burge,  9  C.  B.  431,  B.  C.  L.  R.  vol.  67  ;  see,  however,  Rawlinson  v.  Clarke, 
16  Mee.  &  Wels.  292. 

(u)  Ex  parte  Hamper,  17  Ves.  403  ;  Pott  v.  Eyton,  3  C.  B.  32,  E.  C.  L.  R.  vol.  54  ; 
Stocker  v.  Brockelbank,  3  Mac.  &  Gord.  250. 

1  Individuals  who  have  neither  a  mutual  have  a  property  in  the  capital,  to  make  him 
interest  in  the  capital  invested  in  business,  such  ;  Hodges  v.  Daves  &  Co.,  6  Ala.  R.  217  ; 
nor  are  mutually  to  share  the  losses  that  Dob  et  al.  r.  Halsey,  16  Johns.  R.  34;  for  a 
may  happen,  cannot  be  partners  ;  Lowry  v.  partnership  may  be  formed  by  capital  fur- 
Brooks,  2  McCord's  R.  421  ;  but,  where  the  nished  by  one,  and  skill  and  labor  by  another, 
right  of  a  person  to  receive  profits,  proceeds  provided  the  profits  be  divided  between  them, 
from  hi.s  having  an  interest  in  the  capital,  it  not  as  a  compensation  to  the  one  who  has 
will  constitute  him  a  partner  ;  Ogden,  Admr.,  bestowed  his  skill  and  labor,  but  as  profits; 
V.  Astor  et  al.,  4  Sandf.  S.  R.  311  ;  Vassar  Everett  v.  Coe,  5  Denio's  R.  180;  Simpson 
et  al.  V.  Camp  et  al.,  14  Barb.  S.  R.  341  ;  it  et  al.  v.  Feltz,  1  McCord's  R.  218;  Ward 
is   not   essential,  however,  that  one  should  v.  Thompson,  22  How.  U.  S.  R.  330  ;  neither 


404 


OF   PERSONAL   ESTATE   GENERALLY. 


benefit  of  creditors,  tlie  creditors  will  not,  from  the  mere  cir- 
cumstance of  their  debts  being  paid  out  of  the  profits,  be  liable 
as  partners  for  the  debts  incurred.(.r) 

(x)  Wheatoroft  v.  Hickman,  H.  of  L.,  9  C.  B.  N.  S.  47,  E.  C.  L.  R.  vol.  99. 


is  it  necessary,  in  order  to  be  partners,  that 
all  should  have  an  equal  interest  j  Ilodgman 
V.  Smith,  13  Barb.  S.  R.  302 ;  Motly  v. 
Jones  et  al.,  3  Ired.  C.  R.  144  ;  but,  the  law 
will  presume  their  interests  are  equal  unless 
the  contrary  is  shown  ;  Roach  v.  Perry,  16 
111.  R.  37  ;  Stein  v.  Robertson,  30  Ala.  R. 
•  286  ;  Moore  v.  Bare,  11  Iowa  R.  198. 

And  one  who  contracts  for  a  share  of  the 
profits  of  a  concern,  as  profits,  will  be  a  part- 
ner; Chase,  Admr.,  v.  Barrett  et  al.,  4  Paige's 
C.  R.  148  ;  Price  &  Co.  v.  Alexander  &  Co., 
2  Greene's  R.  127  ;  Denny  et  al.  v.  Cabot  et 
al.,  6  Metcf.  R.  89  j  Judson  et  al.  v.  Adams, 
Ac,  8  Cush.  R.  562  ;  Griffith  &  Co- v.  Buffam 
et  al.,  22  Vt.  R.  181 ;  Heimstreet  v.  Howland, 

5  Denio's  R.  68 ;  Wadsworth  v.  Manning  et 
al.,  4  Md.  R.  69 ;  Barrett  v.  Swann  et  al.,  17 
Maine  R.  180;  Doak  v.  Swann  et  al.,  8  Id. 
170;  Cox  et  al.  v.  Delano,  3  Dev.  R.  89;  Holt 

6  Co.  V.  Kernodle,  1  Ired.  R.  202  ;  Brock- 
away  v.  Burnap,  16  Barb.  S.  R.  309  ;  Cats- 
kill  Bank  v.  Gray,  14  Id.  472;  Belknap  et  al. 
V.  Wendell,  1  Fost.  R.  175  ;  Pattison  et  al. 
V.  Blanchard,  1  Seld.  R.  186 ;  Hodgman  v. 
Smith,  13  Barb.  S.  R.  302;  Emanuel  v. 
Draugher  et  al.,  14  Ala.  R.  306 ;  Hodges  v. 
Dawes  &  Co.,  6  Id.  217  ;  Simpson  et  al.  v. 
Feltz,  1  McCord's  C.  R.  218;  Solomon  v. 
Solomon,  Exrx.,  2  Kelly's  R.  18  ;  Bowman  et 
al.  V.  Bailey,  10  Vt.  R.  170;  Boardman  v. 
Keeler  et  al.,  2  Id.  65  ;  Kellogg  v.  Griswold, 
12  Vt.  R.  291 ;  Gregory  et  al.  v.  Dodge  et  al., 
14  Wend.  R.  593  ;  Noyes  v.  (fushman  et  al., 
25  Vt.  R.  396  ;  a  community  of  profits,  there- 
fore, as  a  compensation,  or  commission,  and 
not  joined  with  a  participation  in  the  losses, 
will  not  make  a  partnership ;  Fitch  v.  Hail, 
25  Barb.  R.  13  ;  Polk  v.  Buchanan,  5  Sneed's 
R.  721 ;  Williams  v.  Soulter,  7  Clarke's  R. 
435  ;  but  it  seems  that,  as  regards  third  per- 
sons, the  mere  perception  of  profits  is  sufl^cient 
to  make  a  partnership;  Bromley  v.  Elliott, 
38  N.  H.  R.  287 ;  Fitch  v.  Harrington,  13 
Gray's  R.  468  ;  Wait  v.  Brewster,  31  Vt.  R. 
516  ;  Chapman  v.  Devereaux,  32  Vt.  R.  616  ; 


Berthold  v.  Goldsmith,  24  How.  (U.  S.)  R. 
636;  in  other  words,  there  will  be  a  copart- 
nership, when  each  has  such  an  interest  in 
the  profits  as  will  entitle  him  to  an  account, 
and  give  him  a  specific  lien  on  the  fund  for 
the  payment  of  the  balance  of  his  account : 
Champion  v.  Bostwick,  18  Wend.  R.  680,  S. 
C.  11  Id.  571 ;  Conkling  et  al.  v.  The  Wash- 
ington University  et  al.,  2  Md.  C..  Decs.  497; 
Pierce,  Ailmr.,  et  al.  v.  Tiernan  et  al.,  10  Gill 
&  Johns.  R.  253;  Hodges  v.  Dawes  &  Co.,  6 
Ala.  R.  217;  Hodges  v.  Hollman,  1  Denio's 
R.  50  ;  Bowman  et  al.  v.  Bailey,  10  Vt.  R. 
170  ;  McCauley  v.  Cleveland,  21  Mo.  R.  438; 
Brigham  v.  Dana,  29  Vt.  R.  1. 

Hence,  where  a  person  is  to  receive,  as 
wages,  a  compensation  graduated  according 
to  a  percentage  of  the  profits,  it  will  not 
make  him  a  partner;  Nutting  v.  Colt,  3 
Halst.  C.  R.  539  ;  Perrine  v.  Hankinson,  6 
Halst.  R.  181 ;  Ogden,  Admr.,  v.  Astor  et 
al.,  4  Sandf.  S.  R.  311 ;  Burkle  v.  Eckart,  1 
Denio's  R.  337;  Price  &  Co.  v.  Alexander  & 
Co.,  2  Greene's  R.  427;  Ambler  v.  Beverly, 
6  Vt.  R.  119;  Baxter  et  al.  v.  Rodman,  3 
Pick.  R.  435  ;  Denny  et  al.  v.  Cabot  et  al.,  6 
Mete.  R.  89  ;  Dunham  v.  Clayton,  1  Pa.  St. 
R.  255;  Potter  v.  Moses  et  al.,  1  R.  I.  R. 
430 ;  Bartlett  v.  Jones,  2  Strobh.  R.  471  ; 
Cofiin  V.  Jenkins,  3  Story's  R.  108;  Clement 
V.  Hadock,  13  N.  H.  R.  190  ;  Bowman  et  al. 
V.  Bailey,  10  Vt.  R.  170;  Boardman  v.  Kee- 
ler et  al.,  2  Id.  65;  Wilkinson  v.  Jett,  7 
Leigh's  R.  115;  Norment  v.  Hall,  1  Hump. 
R.  324;  Kellogg  v.  Griswold,  12  Vt.  R.  291; 
Ambler  v.  Bradley,  6  Vt.  R.  119;  Shropshire 
V.  Shepherd,  3  Ala.  R.  733  ;  Newman  et  al. 
V.  Bean,  1  Fost.  R.  93  ;  Rice  v.  Austin,  17 
Mass.  R.  205;  Vanderburgh  v.  Hall  et  al., 
20  Wend.  R.  70;  Emanuel  v.  Draugher  et 
al.,  14  Ala.  R.  306  ;  Hodges  v.  Dawes  &  Co., 
6  Id.  217;  Loomis  v.  Marshall,  12  Conn.  R. 
77  ;  Ross  v.  Drinker,  2  Hall's  R.  415 ;  Thomp- 
son V.  Snow  et  al.,  4  Greenlf.  R.  264 ;  Turner 
V.  Bissell  et  al.,  14  Pick.  R.  194;  Moore  v. 
Smith,  19  Ala.  R.  774;  Reed  v.  Murphy  et. 


OF   JOINT   OWNERSHIP   AND   JOINT  LIABILITY. 


405 


When  the  relation  of  partners  has  been  established  between 
two  or  more  persons,  either  ostensibly  or  by  participation  in 


al.,  2  Greene's  R.  574;  Champion  et  al.  v. 
Bostwick,  18  Wend.  R.  580,  S.  C.  11  Id.  571  ; 
Bull  V.  Schuberth,  2  Md.  R.  38  ;  Hallett  v. 
Desbau,  14  La.  An.  R.  529  ;  Smith  v.  Perry, 
5  Dutch.  R.  74  ;  and  it  has  been  held,  that  an 
agreement  between  two  house?,  to  share  com- 
missions on  sales  of  goods,  forwarded  by  one 
to  the  other,  will  not  constitute  a  partner- 
ship; Pomeroy  v.  Sigerson,  22  Mo.  R.  177; 
and  so  of  two  carriers  to  share  freight ;  Mer- 
rick V.  Gord.m,  20  N.  T.  R.  93. 

That  there  is  a  distinction  between  a  shar- 
ing of  the  profits  indefinitely,  and  the  taking 
of  a  percentage  of  the  profits,  is  undoubtedly 
the  law  of  this  country,  as  it  is  also  that  of 
England,  but  it  is  a  matter  of  great  difiBculty 
to  determine  where  the  profits  as  wages  end, 
and  the  profits  as  profits  begin  ;  thus,  Wilde 
J.,  in  Blanehard  v.  Coolidge,  22  Pick.  R. 
154,  says:  "But  there  is  a  distinction  be- 
tween an  agreement  to  share  the  profits  of  a 
trade  indefinitely,  as  profits,  and  an  agree- 
ment with  an  agent  to  allow  him  a  certain 
share  of  the  profits,  as  a  compensation  for  his 
services."  So,  too,  this  delicate  difierence  is 
commented  upon  by  Chief  Justice  Gibson,  in 
Miller  r.  Bartletetal.,  15  Serg.  &Raw.  R.137, 
in  the  following  words  :  "  How  a  commission 
on  profits,  can  be  distinguished  from  an  in- 
terest in  the  profits,  as  such,  I  am  at  a  loss  to 
comprehend.  The  profits  cannot  be  ascer- 
tained before  the  partnership  account  is  set- 
tled, and  then  a  party,  under  claim  to  commis- 
sions, is  entitled  to  what?  To  a  compensation 
equal  in  amount  to  so  many  hundredths  of 
the  sum  of  the  profits.  He  is  said  not  to 
have  a  specific  interest  in  the  profits  as  such. 
He  has,  indeed,  no  lien  or  specific  demand  on 
the  particular  fund  as  a  corptis  ;  but  neither 
has  a  partner  who  is  admitted  to  be  so ; 
profits  being  an  incorporeal  essence,  and 
without  specific  existence  before  they  are  re- 
ceived and  enjoyed.  It  is  imjjossible  to  dis- 
cover any  difference,  but  what  is  found  in 
the  terms,  between  a  dividend  and  a  commis- 
sion ;  yet  this  difference,  flimsy  as  it  is,  seems 
to  be  firmly  established."  And  again,  in 
Dunham  v.  Rogers,  1  Pa.  St.  R.  262,  the  .same 
Judge  remarks  :   "It  has  been  so  often  and  so 


invariably  ruled,  in  England  and  America, 
that  a  commission  on  profits,  is  not  such  an 
interest  in  the  concern  as  constitutes  partner- 
ship, that  the  point  is  at  rest.  What  staggers 
the  mind,  in  this  instance,  is  the  apparent 
shallowness  of  the  distinction,  when  it  is  con- 
sidered, that  a  commission  of  fifty  per  cent,  is 
no  more  nor  less  than  an  equal  division  of  the 
profits  ;  but  it  must  not  be  forgotten  that  the 
distinction  is  an  arbitrary  one,  resting  on 
authority,  not  principle,  and  that  whatever 
be  the  proportion,  the  relation  produced  by  a 
compensation,  in  the  form  of  a  commission,  is 
in  every  instance  the  same."  And  see  the 
case  of  Pierson  v.  Steinmyer  et  al.,  4  Rich- 
ard. R.  309,  where  Judge  Wardlow  says : 
"  An  agent  might  stipulate,  that  he  might  re- 
ceive for  his  services,  a  sum  equal  to  a  cer- 
tain share  of  the  profits  of  a  house,  owned  by 

neighbors  of  his  employer As  profits 

usually  arise  in  dollars,  there  is,  of  course, 
frequent  confusion  between  a  share  of  the 
profits  as  profits,  and  a  sum  measured  by  a 
share  of  the  profits ;  and  the  distinction  be- 
comes shadow3%  difl5cult  of  application,  and 
liable  to  be  perverted  to  purposes  of  fraud 
and  unfair  dealing." 

An  agreement  that  each  party  shall  pay 
his  own  losses,  will  not  constitute  a  partner- 
ship, for  they  must  mutually  share  each  oth- 
er's losses;  but,  under  such  a  state  of  circum- 
stances, they  may  be  liable  to  third  persons, 
as  partners;  Heckert  v.  Fegely,  6  Wat.  & 
Serg.  R.  139.  Where,  upon  agreement,  one 
was  to  furnish  a  circular  saw-mill,  and  hands, 
and  stock  to  saw,  and  another  was  to  furnish 
logs,  and  feed,  for  the  hands  and  stock,  and 
the  lumber  was  to  be  divided  equallj'  between 
them,  it  was  held  that  they  were  not  part- 
ners ;  Stoallings  v.  Baker  et  al.,  16  Mo.  R. 
481;  but,  "where  two  persons  agreed  to 
burn  lime  on  .shares,  one  to  fill  the  kiln  with 
stones,  and  the  other  to  burn  the  kiln,  and 
furnish  the  necessary  wood  for  the  purpose, 
the  lime  to  be  equally  divided  between  them, 
it  was  held,  that  a  technical  partnership  ex- 
isted between  the  parties."  See,  also,  Jones 
V.  McMichael,  12  Rich.  L.  R.  176. 

What  constitutes  a  partnership,  is  a  ques- 


406 


OF   PERSONAL   ESTATE   GENERALLY. 


profits,  each  incurs  liability  from  the  acts  and  dealings  of  the 
other  in  the  ordinary  course  of  business.     For  any  one  partner 


tion  of  law ;  whether  one  exists,  is  a  question 
of  fact ;  Gilpin  v.  Temple  et  al.,  4  Harring. 
R.  192.  But  a  partnership  may  exist  as  to 
third  persons,  where  it  does  not  exist  between 
the  parties  themselves;  thus,  in  Hazzard  v. 
Hazzard,  1  Story's  R.  273,  Judge  Story  uses 
the  following  language  :  "It  is  necessary  to 
take  notice  of  a  well-known  distinction  be- 
tween cases,  where,  as  to  third  persons,  there 
is  held  to  be  a  partnership,  and  cases,  where 
there  is  a  partnership  between  the  parties 
themselves.  The  former  may  arise  between 
the  parties,  by  mere  operation  of  law,  against 
the  intention  of  the  parties ;  whereas,  the 
latter  exists  only  when  such  is  the  actual  in- 
tention of  the  parties.  Thus,  if  A.  and  B. 
should  agree  to  carry  on  any  business  for 
their  joint  profit,  and  to  divide  the  profits 
equally  between  them,  but  B.  should  bear  all 
the  losses,  and  should  agree  that  there  should 
be  no  partnership  between  them  ;  as  to  third 
persons  dealing  with  the  firm,  they  would  be 
held  partners,  though  inter  se,  they  would  be 
held  not  to  be  partners."  In  speaking  of 
the  same  subject,  Chief  Justice  Rufiin,  in  Holt 
&  Co.  V.  Kernodle,  1  Ired.  R.  202,  remarks: 
"As  to  third  persons,  who  may  deal  with  the 
firm,  a  partnership  may  arise,  upon  a  prin- 
ciple of  public  policy,  so  as  to  bind  a  person 
for  all  the  liabilities  of  a  firm,  and,  indeed, 
make  him  a  party  to  all  its  contracts,  although 
that  person  bring  into  the  business  neither 
effects  nor  services,  but  merely  lend  his  name 
as  a  partner,  or  otherwise  hold  himself  out  to 

the  world  as  such The  ordinary  test, 

however,  of  a  person  being  a  partner,  is  his 
participating  in  the  profits  of  the  business; 
and  we  believe,  there  can  be  no  instance  im- 
agined, where  there  is  to  be  a  participation 
in  them,  as  profits,  in  which  every  person 
having  a  right  to  share  in  them,  is  not  thereby 
rendered  a  partner,  to  all  intents  and  pur- 
poses. It  is  so  between  the  parties  them- 
selves ;  because  the  one  of  them  does  not  look 
to  the  other,  personally,  for  restoring  to  him 
his  capital,  or  remunerating  him  for  his  la- 
bor ;  but  each  looks  to  the  assets,  or  joint 
fund,  for  those  purposes,  and  ascertains  his 
interest  by  taking  an  account  of  the  concern. 


Much  more  does  sharing  in  the  profits  consti- 
tute a  partnership  as  to  the  rest  of  the  world, 
because,  .  .  .  the  party  takes  from  the  cred- 
itors a  portion  of  that  fund,  which  is  the 
proper  security  for  the  payment  of  their 
debts."  Again,  in  the  ease  of  Gill  et  al.  v. 
Kuhn,  6  Serg.  &  Raw.  R.  337,  which  was  a 
suit  between  partners,  it  was  said  by  Chief 
Justice  Gibson  :  "  That  there  is  a  distinction 
between  partnership  as  it  respects  the  public, 
and  partnership  as  it  respects  the  parties,  is 
an  elementary  principle  of  this  branch  of  the 
law,  so  plain,  that  its  only  difficulty  is  its 
application  to  particular  cases.  Where  the 
agreement  is  silent,  there  is  often  room  to 
doubt  as  to  the  precise  relation  in  which  the 
parties  stand  to  each  other  ;  and  then  a  joint 
interest  in  the  stock  is  considered  a  discrimi- 
native circumstance  ;  but  where  they  expli- 
citly declare  there  is  to  be  no  partnership,  it 
is  unnecessary  to  inquire  further ;  for  among 
themselves,  the  law  permits  them  to  deter- 
mine their  respective  interests  by  their  own 
stipulations  ;   it  is  a  matter  with  which  third 

persons  have  no  concern Hence,  the 

invoices,  bills  of  sale,  circular  letter,  and 
receipt-book,  given  in  evidence  to  prove  that 
a  joint  business  had  been  carried  on,  which 
would  have  a  decisive  influence  on  a  question 
of  liability  to  third  persons,  must  be  laid  out 
of  the  case  here."  And  see.  Kerr  v.  Potter, 
6  Gill's  R.  404;  Sylvester  et  al.  v.  Smith,  9 
Mass.  R.  119  ;  Coterill  v.  Vandusen  et  al.,  22 
Vt.  R.  511  ;  Stearns  v.  Haven  et  al.,  12  Id. 
540  ;  Markham's  Exr.  v.  Jones,  7  B.  Mon.  R. 
486;  Buckingham  v.  Burgess  et  al.,  3  McL. 
R.  364 ;  Blanchard  v  Coolidge,  22  Pick.  R. 
154  ;  Heckert  v.  Fegely,  6  Wat.  &  Serg.  R. 
139;  Kellogg  V.  Griswold,  12  Vt.  R.  291; 
Osborne  v.  Brennan,  2  N.  &  McCord's  R.  427; 
Motley  V.  Jones  et  al.,  3  Ired.  C.  R.  144 ;  Bull 
V.  Schuberth,  2  Md.  R.  38 ;  Pierson  v.  Stein- 
myer  et  al.,  4  Richard.  R.  309;  Cutter  v.  The 
Estate  of  Thomas,  25  Vt.  R.  78  ;  Mathews  v. 
Felch  et  al..  Id.  538 ;  Drennen  et  al.  v.  House 
&  Co.,  41  Pa.  St.  R.  30  ;  Grady  v.  Robinson, 
28  Ala.  R.  289;  Shackleford  v.  Smith,  25 
Mo.  R.  348  ;  Robinson  v.  Green,  6  Har- 
ring. R.  115  ;   Scranton  v.  Rentfrow,  29  Geo. 


OF   JOINT   OWNERSHIP   AND   JOINT    LIABILITY. 


407 


may  buy,  sell(^)  or  pledge  goods ;(2-)  draw,(a)  accept(6)  or  in- 
dorse((?)  bills  of  exchange  and  promissory  notes;  give  guaran- 
tees,{d)  receive  moneys(6)  and  release  or  compound  for  debts(/) 
in  the  name(^)  and  on  the  account  of  tlie  firm,  in  the  ordinary 
course  of  business.'    Each  partner  is  also  answerable  for  the 

(y)  Hyat  V.  Hare,  Comb.  383;  Lambert's  Case,  Godbolt,  244. 
{z)  Reid  V.  Hollinshead,  4  B.  &  Cress.  867,  E.  C.  L.  R.  vol.  10. 

(a)  Smith  v.  Jarvis,  2  Lord  Raymond,  1484  ;  Re  Clarke,   Ex  parte  Buckley,  14  Mee.  «fc 
Wels.  469  ;  1  Phil.  562. 

(b)  Pinkney  v.  Hall,  1  Salk.  126  ;  1  Lord  Raym.  175  ;  Lloyd  v.  Ashby,  2  B.  &  Adol.  23, 
E.  C.  L.  R.  vol.  22. 

(c)  Swan  V.  Steele,    7  East,   210  ;  Vere  v.  Ashby,    10   Barn.   &  Cress.  288,   E.  C.  L.  R. 
vol.  21. 

id)  Ex  parte   Gardotn,  15  Ves.  286;  see  Halesham  v.  Young,  5  Q.  B.   833,   E.  C.  L.  R. 
vol.  48. 

(e)  Duff  V.  East  India  Company.  15  Ves.  198,  213. 

(/)  Per  Lord  Kenyon,  4  T.  Rep.  519  ;  per  Best,  C.  J.,  10  Moore,  393. 

(g)  Kirk  V.  Blurton,  9  Mee.  &  Wels.  284. 


R.  341.  Limited  partnerships,  however,  may 
be  formed,  in  almost  all  the  States,  in  the 
manner  directed  by  statute  ;  and  the  special 
partner,  in  such  a  partnership,  will  not  be 
liable  to  the  creditors  of  the  firm,  to  a  greater 
extent  than  the  amount  contributed  by  him 
to  the  company.  A  limited  partnership  may 
be  defined,  as  a  contract  by  which  one  person 
or  partnership,  agrees  to  furnish  another  per- 
son or  partnership,  a  certain  amount,  either 
in  property  or  money,  to  be  employed  by  the 
person  or  partnership,  to  whom  it  is  furnished, 
in  his  or  their  own  name  or  firm,  on  condition 
of  receiving  a  share  in  the  profits,  in  the  pro- 
portion determined  by  the  contract,  and  of 
being  liable  to  losses  and  expenses  to  the 
amount  furnished,  and  no  more. 

On  the  subject  of  limited  partnership,  see 
the  statutes  of  the  respective  States  ;  author- 
ity for  the  formation  of  this  species  of  part- 
nership being  thereby  given  in  almost  every 
State. 

'  One  partner  may  bind  the  firm  by  a  parol 
contract,  in  business  relating  to  the  partner- 
ship; Weaver  v.  Tapscott,  9  Leigh's  R.  432  ; 
Sale  V.  Dishman's  Exrs.,  3  Id.  548;  McCul- 
lough  V.  Sommerville,  8  Id.  415  ;  Doak  v. 
Swann  et  al.,  8  Maine  R.  170  ;  The  Man.  and 
Mech.  Bank  v.  Gore  et  al.,  15  Mass.  R.  81  ; 
Boardman  v.  Gore  et  al..  Id.  339  ;  Galloway 
V.  Hughes  et  al.,  1  Bail.  R.  561 ;  Nichols  v. 


Hughes  et  al.,  2  Id.  109  ;  Livingston  t;.  Roose- 
velt, 4  Johns.  R.  265 ;  Winship  v.  The  Bank 
of  the  United  States,  5  Pet.  R.  529  ;  Miller 
V.  Consolidation  Bank,  48  Pa.  St.  R.  514  ; 
Ihmsen  v.  Negley  et  al.,  25  Id.  297  ;  Fant  v. 
West,  10  Rich.  L.  R.  149  ;  Kennebec  Co.  v. 
Augusta  Ins.  and  Banking  Co.,  6  Gray's  R. 
204  ;  Storer  v.  Hinkley  et  al.,  Exrs.,  Kirby's 
R.  147;  but  "the  purposes  for  which  the 
partnership  was  created,  and  the  extent  of 
the  authority  of  the  individual  members,  is 
not  to  be  limited  by  the  articles  under  which 
their  connection  was  formed,  but  is  to  be  as- 
certained, rather  from  the  character  of  their 
dealings,  and  manner  in  which  they  hold 
themselves  out  to  the  world  ;"'  hence,  in  the 
case  of  Catlin  et  al.  v.  Gilder's  Exrs.,  3  Ala. 
R.  544,  it  having  been  testified  that  the  firm 
of  Catlin,  Peeples  &  Co.  dealt  in  dry  goods 
and  groceries,  and  were  in  the  habit  of  trad- 
ing in  anything  on  which  they  could  make 
money,  it  was  held,  that  "  taking  this  state- 
ment as  literally  true,  and  it  cannot  be  ques- 
tioned, that  Catlin  might,  during  the  con- 
tinuance of  the  partnership,  have  purchased 
hogs,  or  other  stock,  on  account  of  the 
firm." 

But  in  doubtful  cases,  it  is  for  a  jury  to  de- 
cide, whether  the  partner  was  conducting  the 
usual  business  of  the  firm,  in  the  usuiil  miin- 
ner,  so   as   to  bind    the    firm ;  The    London 


408 


or    PERSONAL   ESTxVTE    GENERALLY. 


fraud  of  liis  copartner  in  any  matter  relating  to  the  business  of 


Savings  Fund  Society  v.  Hagerstown  Savings 
Bank,  36  Pa.  St.  R.  498.  A  partnership  is 
bound  by  the  fraud' of  one  of  its  members,  in 
all  matters  relating  to  the  business  of  the 
firm  ;  Beach  v.  The  State  Bank,  2  Cart. 
(Ind.)  R.  488:  Boardman  v.  Gore  et  al.,  15 
Mass.  R.  3.31  ;  Reynolds  v.  Waher's  Heir  and 
Admr.,  1  ^Yash.  (Va.)  R.  >64  ;  Venable  v. 
Levick,  2  Head's  R.  351  ;  Nesbit  et  al.  v. 
Patton  et  al.,  4  Raw.  R.  120  ;  for,  "by  form- 
ing the  connection,  the  partners  publish  to 
the  world  their  confidence  in  each  other's  in- 
tegrity and  good  faith,  and  impliedly  agree 
to  be  responsible  for  what  they  shall  respec- 
tively do,  within  the  scope  of  their  partner- 
ship business."  Hawkins  et  al.  -v.  Appelby 
et  al.,  2  Sandf.  S.  R.  428.  But  if  money  is 
borrowed,  or  goods  bought,  or  any  other  con- 
tract is  made  by  one  partner,  upon  his  own 
exclusive  credit,  he  alone  is  liable  therefor,  al- 
though the  money,  property,  or  other  contract 
is  for  the  proper  use  and  benefit  of  the  part- 
nership, and  is  applied  thereto  ;  No.  Pa. 
Coal.  Cos.  Ap.,  45  Pa.  St.  R.  185  ;  Clay  v. 
Cottrell,  18  Id.  408.  But  see  to  the  contrary, 
Tucker  v.  Peaslee,  36  N.  H   R.  167. 

But  one  partner  cannot  bind  the  firm  by 
deed,  or  instrument  under  seal  ;  Donaldson 
V.  Kendall  et  al.,  2  Geo.  Decs.  227  ;  Clement 
V.  Brush,  3  Johns.  Cas.  181  ;  Green  et  al.  v. 
W.  &  T.  Beals,  2  Caines's  R.  254 ;  Napier  v. 
Catron  et  al.,  2  Hump.  R.  534  ;  Anderson  et 
al.  V.  Tompkins  et  al.,  1  Brockenb.  R.  463  ; 
Andrew's  Heirs,  Ac,  v.  Brown's  Admr.  et 
al.,  21  Ala.  R.  437  ;  Davidson  et  al.  v.  Kelly, 
1  Md.  R.  501  ;  Snyder  v.  May  et  al.,  19  Pa. 
St.  R.  235;  Pierce  v.  Cameron  et  al.,  7 
Richard.  R.  114  :  Chamberlain  et  al.  v.  Mad- 
den, Id.  395  ;  except  by  way  of  release  ; 
Crutwell  V.  De  Rossett,  5  Jones's  L.  R.  263  ; 
Fluck  V.  Bond,  3  Phila.  R.  207  :  Ormsbee  v. 
Davis,  5  R.  I.  R.  442  ;  and  hence,  one  partner 
cannot  dispose  of  the  partnership  real  estate  ; 
Piatt  V.  Oliver  et  al.,  3  McL.  R.  27;  Ely  v. 
Hair,  16  B.  Mon.  R.  230  ;  though  his  deed 
will  convey  to  the  grantee  the  legal  title  to 
an  undivided  moiety,  subject  to  the  equities 
of  the  partnership ;  Jones  v.  Neagle,  2  P.  & 
H.  R.  (Va.),  339  ;  but  where  a  partner  has  a 


right  to  dispose  of  the  assets  of  the  firm  as 
surviving  partner,  though  his  deed  to  a  pur- 
chaser of  real  estate  will  not  convey  a  legal 
title,  yet  it  will  transfer  an  equitable  title, 
through  which  he  may  compel  the  heir  to 
convey  the  estate  ;  Andrew's  Heirs,  &e.,  v. 
Brown's  Admr.  et  al.,  21  Ala.  R.  437  ;  Roth- 
well  V.  Dewees,  2  Black's  U.  S.  R.  616  ;  Du- 
bois Ap.,  38  Pa.  St.  R.  231  ;  and  it  has  been 
held,  that  in  cases  of  urgency,  all  the  partners 
need  not  join  in  an  assignment  of  the  partner- 
ship property  ;  Robinson  v.  Gregory.  29  Barb. 
R.  560  ;  Kemp  v.  Carnley,  3  Duer's  R.  1. 
So,  one  partner  canuot  by  a  confession  of 
judgment  bind  his  copartner  ;  Shedd  v.  Bank 
of  Brattleboro,  32  Vt.  R.  709 ;  Edwards  v. 
Pitzer,  12  Iowa  R.  607;  unless  actually 
brought  into  court  by  service  of  process  on 
himself  and  copartner ;  Crane  et  al.  v. 
French  et  al.,  1  Wend.  R.  311 ;  Morgan  et  al. 
V.  Richardson,  16  Mo.  R.  409  ;  and  a  ser- 
vice of  process  on  one  of  several  partners,  is 
not  equivalent  to  service  on  all  ;  Rice  v. 
Doniphan  et  al.,  4  B.  Mon.  R.  123.  But  a 
judgment  for  a  partnership  debt  recovered 
against  one  of  the  partners,  the  others  being 
out  of  the  jurisdiction,  is  payable  out  of  part- 
nership property,  in  preference  to  the  indivi- 
dual debts  of  the  partner  sued  ;  Inbusch  v. 
Farwell,  1  Black's  U.  S.  R.  566  ;  and  a  judg- 
ment confessed  by  one  partner,  is  good  as  be. 
tween  him  and  the  creditor,  though  void  as  to 
the  copartners;  York  Bank's  Ap. ,  36  Pa.  St. 
R.  458 ;  Grier  v.  Hood,  25  Id.  430. 

After  the  dissolution  of  a  firm,  the  admis- 
sions of  one  of  the  partners  cannot  be  received 
in  evidence  against  his  copartners  ;  Hamil- 
ton V.  Summers,  12  B.  Mon.  R.  14  ;  Daniel 
V.  Nelson,  10  Id.  316  ;  Draper  v.  Bi.=sel  et 
al.,  3  McL.  R.  275  ;  Bispham  v.  Patterson  et 
al.,  2  Id.  87  ;  Robinson  et  al.  v.  Taylor  et  al., 
4  Pa.  St.  R.  242;  Berryhill  v.  McKee,.  1 
Hump.  R.  31  ;  Kauffman  v.  Fi.=her,  3  Grant's 
Cas.  302  ;  unless  the  one  making  such  admis- 
sions, has  an  express,  or  an  implied  authority, 
to  settle  the  business  of  the  firm  ;  Draper 
V.  Bissel  et  al.,  3  McL.  R.  275  ;  Robinson 
et  al.  V.  Taylor  et  al.,  4  Pa.  St.  R.  242; 
Reppert  v.  Colvin,  48  Pa.  St.  R.  248. 


OF   JOINT   OWNERSHIP   AND   JOINT    LIABILITY.  409 

the  partnership. (A)  '  And  in  *like  manner  notice  of  any  r:^Qq-t-\ 
matter  relating  to  the  partnership,  if  given  to  one  partner,  L  ^  J 
is'  constrnctively  notice  to  them  all.(2)  And  any  agreement 
between  the  partners,  by  which  any  one  of  them  may  be  re- 
strained from  doing  any  act  to  pledge  the  credit  of  the  firm, 
though  binding  as  between  themselves,  will  not  be  binding  on 
any  creditor( J)  who  may  not  have  notice  of  it.{Ji)  If,  however, 
the  transaction  be  not  in  the  ordinary  course  of  the  business  of 
the  partnership,  the  other  partners  will  not  be  liable  as  such  in 
respect  of  it.  Thus  one  partner  cannot  bind  the  firm  by  a  sub- 
mission to  arbitration, (f)  or  by  confessing  a  judgment;(wi)  and 
one  partner  has  ordinarily  no  authority  to  execute  a  deed  in  the 
names  of  the  others  so  as  to  bind  the  partnership. (n)  So  a 
farmer  carrying  on  his  business  in  partnership  with  another 
would  not  be  liable  on  a  bill  of  exchange  drawn  by  his  partner 
in  the  name  of  the  partnership  ;(o)  neither  wopld  a  solicitor  be 
liable  on  a  bill  drawn  by  his  partner  in  the  name  of  his  firm, 
though  given  to  secure  a  partnership  deht;{p)  for  bill  transac- 
tions form  no  part  of  the  ordinary  business  of  either  farmers  or 
solicitors.  Again  there  is  no  right  or  power  implied  by  law  in 
any  of  the  directors  of  a  joint-stock  company  to  bind  the  com- 
pany by  drawing  or  accepting  bills  or  notes ;(^)  and  in  like  man- 
ner notice  of  any  matter  relating  to  the  business  of  a  joint-stock 
company  given  to  any  member,  even  a  director,  is  not  r-^^^^.^^-, 
*constructive  notice  to  the  company  itself. (r)  For  joint- 
stock  companies  are  essentially  different  from  ordinary  partner- 
ships. It  is  not  necessary  that  the  directors  should  have  any 
other  power  to  bind  the  company  by  bills  or  notes  than  such  as 

(/i)  Willet  V.  Chambers,  Cowp.  814;  Stone  v.  Marsh,  6  Barn.  &  Cress.  551,  E.  C.  L.  R. 
vol.  13  ;  Lavell  v.  Hicks,  2  You.  &  Coll,'  481  ;   Blair  v.  Bromley,  5  Hare,  542  ;   2  Phil.  354. 

(i)  Per  Lord  Ellenborough,  1  Mau.  &  Selw.  259. 

(_;■)  Waugh  v.  Carver,  2  H.  Black.  235  ;  South  Carolina  Bank  v.  Case,  8  Barn.  &  Cress. 
427,  E.  C.  L.  R.  vol.  15  ;  Hawken  v.  Bourne,  8  Mee.  &  Wels.  703,  710. 

(/■)   Minnit  v.  Whinery,  5  Bro   Pari.  Gas.  489. 

(/)   Stead  V.  Salt,  3  Bing.  101,  E.  C.  L.  R.  vol.  11 ;  S.  C.  10  J.  B.  Moore,  389. 

(in)  Harabidge  v.  De  la  Crouee,  3  C.  B.  742,  E.  C.  L.  R.  vol.  54. 

(w)   Harrison  v.  Ja  kson,  7  T.  Rep.  207.     See  Burn  v.  Burn,  3  Ves.  573,  578. 

(o)   Per  Littledale,  J.,  10  Barn.  &  Cress.  138,  E.  C.  L.  R..  vol.  21. 

(/;)   Hedley  v.  Bainbridge,  3  Q.  B.  310,  E.  C    L.  R.  vol.  43. 

(«/)  Dickinson  v.  Valpy,  10  Barn.  &,  Cress.  128,  E.  C.  L.  R.  vol.  21  ;  Bramah  v.  Roberts, 
3  N.  C.  903,  E.  C.  L.  R.  vol.  32. 

(r)  Powles  V.  Page,  3  C.  B.  10,  E.  C.  L.  R.  vol.  54  ;  Martin  v.  Sedgwick,  9  Beav.  333. 


410  OF   PERSONAL   ESTATE   GENERALLY. 

may  be  conferred  on  them  by  the  charter  or  articles  of  associa- 
tion ;(5)  and  the  business  of  such  companies  is  always  carried  on 
at  an  office  for  the  purpose,  and  is  not,  like  that  of  ordinary 
partnerships,  confided  to  any  one  individual  member.  The  Com- 
panies Act,  18G2,  now  provides,  that  a  promissory  note  or  bill 
of  exchange  shall  be  deemed  to  have  been  made,  accepted,  or 
indorsed  on  behalf  of  any  company  under  that  act,  if  made, 
accepted,  or  indorsed  in  the  name  of  the  company  by  any  person 
acting  under  the  authority  of  tlie  company,  or  if  made,  accepted, 
or  indorsed  by  or  on  behalf  or  on  account  of  the  company  by 
any  person  acting  under  the  authority  of  the  company. (if) 

The  liability  of  a  shareholder  in  a  joint-stock  company  to  the 
debts  of  the  company  has  been  already  noticed.  It  varies,  as  we 
have  seen,(u)  according  as  the  company  is  incorporated  with  un- 
limited liability  or  wnth  liability  limited  by  shares  or  by  guaran- 
tee. The  mere  circumstance,  however,  of  a  person  allowing  his 
name  to  be  published  as  a  provisional  committee-man  of  a  pro- 
jected joint-stock  company  does  not  confer  on  the  solicitor  or 
secretary  of  the  intended  company,  or  any  one  else,  implied 
authority  to  pledge  the  credit  of  such  person  for  goods  supplied 
to  the  company,  or  work  done  on  its  account.(v)  For  to  agree  to 
r*9Qq-]  become  a  *member  of  a  committee  is  merely  to  agree  to 
become  one  of  a  body,  to  whom  others  have  committed  a 
particular  duty,  and  does  not  constitute  an  agreement  to  share 
with  the  other  members  of  that  body  in  profit  or  loss,  w^hich  is 
the  characteristic  of  a  partnership.(2/?)  JS'or  does  the  mere  ac- 
ceptance of  shares  and  payment  of  a  deposit  on  them,  without 
any  further  act,  render  a  provisional  committee-man  liable  to  the 
creditors  of  the  projected  company. (a:) 

Assignees  in  bankruptcy,  with  the  leave  of  the  court  first  ob- 
tained, upon  application  to  such  court,  but  not  otherwise,  may 

(s)   Balfour  v.  Ernest,  5  C.  B.  N.  S.  601,  E.  C.  L.  R.  vol.  94. 

(0   Stat.  25  &  26  Vict.  c.  89,  s.  47. 

(w)   Ante,  p.  208. 

(«)  Reynell  v.  Lewis,  15  M.  &  W.  517;  Barker  v.  Stead,  3  C.  B.  946,  E.  C.  L.  R.  vol. 
64;  Baiiey  v.  Macaulay,  13  Q.  B.  815,  E.  C.  L.  R.  vol.  66. 

(w)   15  Mee.  &  Wels.  529. 

(x)  Bright  V.  Hutton,  3  H.  of  L.  Gas.  341,  overruling  Upfill's  Case,  2  H.  of  L.  Gas.  674. 
See  Spottiswoode's  Case,  6  De  Gex,  M.  &  G.  345. 


OF   A   WILL.  411 

commence,  prosecute,  or  defend  any  action  at  law  or  suit  in  equity 
which  the  bankrupt  might  have  commenced  or  prosecuted  or 
defended ;  and  with  the  like  leave  of  the  court,  after  notice  to 
such  creditors,  and  subject  to  such  condition  (if  any)  as  to  ob- 
taining the  consent  of  creditors,  or  any  proportion  of  them,  as  the 
court  shall  think  fit  to  direct,  the  assignees  may  compound,  or 
give  time,  or  take  security,  for  the  payment  of  any  debts  due  to 
the  bankrupt's  estate,  and  may  submit  to  arbitration  any  dispute 
relating  to  the  bankrupt's  estate.(?/)  And  any  agreement  of 
reference  to  arbitration  made  by  the  assignees  may  be  made  a 
rule  of  any  of  her  majesty's  superior  courts  of  law  at  Westmin- 
ster, whether  such  agreement  contain  a  clause  to  that  eflfect  or 
not.(^) 


♦CHAPTER  III.  [*294] 

OF    A    WILL. 

All  kinds  of  personal  property  may  be  bequeathed  by  will. 
This  right,  in  its  present  extent,  has  been  of  very  gradual  and 
almost  imperceptible  growth ;  for  anciently,  by  the  general  com- 
mon law,  a  man  who  left  a  wife  and  children  could  not  deprivfe 
them  by  his  will  of  more  than  one  equal  third  part  of  his  personal 
property.  If,  however,  he  left  a  wife  and  no  children,  or  children 
and  no  wife,  he  was  then  enabled  to  dispose  of  half,  leaving  the 
other  half  for  the  wife  or  for  the  children, (r?)  This  ancient  rule, 
however,  gradually  became  subject  to  many  exceptions,  by  the  cus- 
toms of  particular  places,  until  the  rule  itself  took  the  place  of  an 
exception  and  became  confined  to  such  places  as  had  a  custom  in 
its  favor.  These  places,  in  later  times,  were  the  province  of 
York,  the  principality  of  Wales,  and  the  city  of  London  ;  as  to 
all  which  places,  a  general  power  of  testamentary  disposition  was 

(y)  Stat.  12  &  13  Vict.  c.  106,  8.  15.3. 
(r)   Sect.  154. 

(a)  2  Black.  Com.  492;  Williams  on  Executors,  pt.  1,   bk.  1,  ch.  1.     See,  also,  1  C.  P. 
Cooper's  Reports,  p.  539. 


412  OF    TERSONAL   ESTATE   GENERALLY. 

conferred  by  acts  of  Parliament  of  AVilliam  ancT  Mary,  Anne  and 
George  l;{b)  and  now,  by  the  recent  act  for  the  amendment  of 
the  laws  with  respect  to  wills, (c)  every  person  of  full  age  is  ex- 
pressly empowered  to  bequeath  by  his  will,  to  be  executed  as  re- 
quired  by  the  act,  all  personal  estate  to  which  he  shall  *De 
•-  -'  entitled,  either  at  law  or  in  equity,  at  the  time  of  his 
decease.^ 

The  ecclesiastical  courts,  as  we  shall  hereafter  see,  very  early 
acquired  the  right  of  determining  as  to  the  validity  of  wills  of 
personal  estate ;  and,  in  the  exercise  of  this  right,  they  generally 
followed  the  rules  of  the  civil  law.  By  this  law  males  at  the  age 
of  fourteen,  and  females  at  the  age  of  twelve,  were  allowed,  if  of 
sufficient  discretion,  to  make  a  testament ;((/)  and  the  same  rule, 
accordingly,  prevailed  in  this  country  with  respect  to  wills  of  per- 
sonal property,(e)  although,  by  some  authorities,  seventeen  and 
even  eighteen  was  said  to  be  the  proper  age.(/)  The  act  for  the 
amendment  of  the  laws  with  respect  to  wills,  has,  however,  now 
made  the  law  uniform  with  respect  to  all  wills,  whether  of  real 
or  of  personal  estate,  and  has  enacted  that  no  will  made  by  any 
person  under  the  age  of  twenty-one  years  shall  be  valid, (9)^ 

(b)  Stat.  4  &  5  Will.  &  Mary,  c.  2,  explained  by  stat.  2  &  3  Anne,  c.  5,  for  the  province 
of  York  ;  Stat.  7  &  8  Will.  Ill,  c.  38,  for  Wales  ;  and  stat.  11  Geo.  I,  c.  18,  for  London. 
See  2  Bl.  Cora.  493. 

(f)    Stat.  7  Will.  IV  &  1  Vict.  c.  26,  s.  3. 

(d)  Inst.  lib.  2,  tit.  12,  s.  1  ;  Dig.  lib.  28,  tit.  1,  s.  5. 

(e)  2  Bl.  Com.  497. 

(/)  Co.  Litt.  89  b,  n  (fi). 

{g)   Stat.  7  Will  IV  &  1  Vict.  c.  26,  s.  7. 

1  By  the  eleventh  section  of  an  act  of  swered  by  a  reference  to  the  statutory  pro- 
the  Legislature  of  Pennsylvania,  of  the  11th    visions  of  each  particular  State. 

of  April,   1848,   the  widow    of   a    decedent,  In  Pennsylvania,    "Every  person  of  sound 

who  has  made  a  will,  shall  not  be  deprived  mind    (married    women    excepted),   may  dis- 

of  her  share  of  his  personalty  under  the  in-  pose  by  will  of  his  or  her  real  estate,  whether 

testate  laws  of  that  State,  in  case  she  elects  such  estate  be  held  in  fee  simple,  or  for  the 

not    to    take    under    the    will  ;    Purd.    Dig.  life  or  lives  of  any  other  person  or  persons, 

(1861),   p.   1017,  sec.    13;    and .  by  a  recent  and  whether    in  severalty,  joint  tenancy  or 

statute,  the  power  of  the  wife  to  make  a  will,  common,  and  also  of  his  -or  her  personal  es- 

has  been  restricted  as  to  her  depriving  her  tate.     Any  married  woman  may  dispose,  by 

husband  of  his  rights,  in  like  manner  ;  Id.  her  last  will  and  testament,  of  her  .separate 

1018,  see.  21.     See,   also,   2  Revis.   Statutes  property,   real,   personal,   or   mixed,  whether 

of  0.  (1861),  p.  1623,  sees.  4.3,  44,  45,  and  46.  the  same  shall  accrue  to  her  before  or  during 

2  The  questions,  who  may  make  a  will  ?  coverture :  provided,  that  the  said  last  will 
and,  how  is   it    to    be    made?  are    best   an-  and  testament  be  executed   in  the  presence 


OF   A   WILL. 


413 


Personal  property  was  anciently  of  so  little  account  that  a  will 
of  it  might  be  made  by  word  of  mouth,  if  proved  by  a  sufficient 


of  two  or  more  witnesses,  neither  of  whom 
shall  be  her  husband.  And  provided,  also, 
that  no  will  shall  be  effectual  unless  the 
testator  were,  at  the  time  of  making  the 
same,  of  the  age  of  twenty-one  years  or  up- 
wards, at  which  age  the  testator  may  dis- 
pose of  real  as  well  as  personal  or  mixed 
property,  if  in  other  respects  competent  to 
make  a  will.  Every  will  shall  be  in  writing, 
and,  unless  the  person  making  the  same  shall 
be  prevented  by  the  extremity  of  his  last 
sickness,  shall  be  signed  by  him  at  the  end 
thereof,  or  by  some  person  in  his  presence, 
and  by  his  express  direction,  and  in  all  cases 
shall  be  proved  by  the  oaths  or  affirmations 
of  two  or  more  competent  witnesses,  otherwise 
such  will  shall  be  of  no  effect.  Provided, 
that  personal  estate  may  be  bequeathed  by  a 
noncupative  will,  under  the  following  restric- 
tions :  1.  Such  will  shall  in  all  cases  be 
made  during  the  last  sickness  of  the  testator, 
and  in  the  house  of  his  habitation  or  dwell- 
ing, or  where  he  has  resided,  for  the  space  of 
ten  days  or  more  next  before  the  making  of 
such  will  ;  except  where  such  person  shall  be 
surprised  by  sickness,  being  from  his  own 
house,  and  shall  die  before  returning  thereto. 
2.  Where  the  sum  or  value  bequeathed  shall 
exceed  one  hundred  dollars,  it  shall  be  proved 
that  the  testator,  at  the  time  of  pronouncing 
the  bequest,  did  bid  the  persons  present,  or 
some  of  them,  to  bear  witness  that  such  was 
his  will,  or  to  that  effect ;  and  in  all  cases  the 
foregoing  requisites  shall  be  proved  by  two 
or  more  witnesses,  who  were  present  at  the 
making  of  such  will.  Provided,  that  not- 
withstanding this  act,  any  mariner  being  at 
sea,  or  any  soldier  being  in  actual  military 
service,  may  dispose  of  his  movables,  wages, 
and  personal  estate,  as  he  might  have  done 
before  the  making  of  this  act.  No  will  in 
writing  concerning  any  real  estate  shall  be 
repealed,  nor  shall  any  devise  or  direction 
therein  be  altered,  otherwise  than  by  some 
other  will  or  codicil  in  writing,  or  other 
writing  declaring  the  same,  executed  and 
proved  in  the  same  manner  as  is  hereinbefore 
provided,  or  by  burning,  cancelling,  or  oblit- 
erating or  destroying  the  same  by  the  testa- 


tor himself,  or  by  some  one  in  his  presence, 
and  by  his  express  direction.  When  any  per- 
son shall  make  his  last  will  and  testament, 
and  afterwards  shall  marry,  or  have  a  child  or 
children  not  provided  for  in  such  will,  and 
die  leaving  a  widow  and  child,  or  either  a 
widow,  or  child,  or  children,  although  such 
child  or  children  be  born  after  the  deatlf  of 
their  father,  every  such  person,  so  far  as  shall 
regard  the  widow,  or  child  or  children  after 
born,  shall  be  deemed  and  construed  to  die 
intestate,  and  such  widow,  child  or  children, 
shall  be  entitled  to  such  purparts,  shares,  and 
dividends  of  the  estate,  real  and  personal,  of 
the  deceased,  as  if  he  had  actually  died  with- 
out any  will.  A  will  executed  by  a  single 
woman  shall  be  deemed  revoked  by  her  sub- 
sequent marriage,  and  shall  not  be  revived  by 
the  death  of  her  husband  ;"  Purd.  Dig.  (1861), 
pp.  1016,  1017,  1018. 

In  New  York,  "All  persons,  except  idiots, 
persons  of  unsound  mind,  married  women, 
and  infants,  may  devise  their  real  estate,  by 
a  last  will  and  testament,  duly  executed, 
according  to  the  provisions  of  this  title. 
Every  male  person  of  the  age  of  eighteen 
years  or  upwards,  and  every  female  not 
being  a  married  woman,  of  the  age  of  six- 
teen years  or  upwards,  of  sound  mind  and 
memory,  and  no  others,  may  give  and  be- 
queath his  or"  her  personal  estate,  by  will  in 
writing.  No  nuncupative  or  unwritten  will, 
bequeathing  personal  estate,  shall  be  valid, 
unless  made  by  a  soldier,  while  in  actual 
military  service,  or  by  a  marine,  while  at 
sea.  Every  last  will  and  testament  of  real 
or  personal  property,  or  both,  shall  be  exe- 
cuted and  attested  in  the  following  manner  : 
1.  It  shall  be  subscribed  by  the  testator  at 
the  end  of  the  will.  2.  Such  subscription 
shall  be  made  by  the  testator,  in  the  presence 
of  each  of  the  attesting  witnesses,  or  shall  be 
acknowlrilged  by  him  to  have  been  so  made, 
to  each  of  the  attesting  witnesses.  3.  The 
testator,  at  the  time  of  making  such  sub- 
scription, or  at  the  time  of  acknowledging 
the  same,  shall  declare  the  instrument  so 
subscribed,  to  be  his  last  will  and  testament. 
4.  There  shall  be  at  least  two  attesting  wit- 


414 


OF   PERSONAL   ESTATE   GENERALLY. 


number  of  witnesses,  as  well  as  by  writing;  and  a  will  made  by 
word  of  moutli  was  termed  a  nuncupative  testament.{A)     By  the 

(h)  Wentworth's  Executors,  11  ft  seq.  ;  Williams  on  Executors,  pt.  1,  bk.  2,  ch.  2,  s.  6. 


Besses,  each  of  whom  shall  sign  his  name  as  a 
witness  at  the  end  of  the  will,  at  the  request 
of  the  testator.  The  witnesses  to  any  will, 
shall  write  opposite  to  their  names  their  re- 
spective places  of  residence  ;  and  every  per- 
soit  who  shall  sign  the  testator's  name  to  any 
will  by  his  direction,  shall  write  his  own 
name  as  a  witness  to  the  will.  No  will  in 
writing,  except  in  the  cases  hereinafter  men- 
tioned, nor  any  part  thereof,  shall  be  revoked 
or  altered,  otherwise  than  by  some  other  will 
in  writing,  or  some  other  writing  of  the  testa- 
tor, declaring  such  revocation  or  alteration, 
and  executed  with  the  same  formalities  with 
which  the  will  itself  was  required  by  law  to  be 
executed  ;  or  unless  such  will  be  burnt,  torn, 
cancelled,  obliterated,  or  destroyed,  with  the 
intent,  and  for  the  purpose  of  revoking  the 
same,  by  the  testator  himself,  or  by  another 
person  in  his  presence,  by  his  direction  and 
consent  j  and  when  so  done  by  another  person, 
the  direction  and  consent  of  the  testator,  and 
the  fact  of  such  injury,  or  destruction,  shall 
be  proved  by  at  least  two  witnesses.  If,  after 
the  making  of  any  will,  disposing  of  the 
whole  estate  of  the  testator,  such  testator 
shall  marry,  and  have  issue  of  such  marriage, 
born,  either  in  his  lifetime,  or  after  his  death, 
and  the  wife,  or  the  issue  of  such  marriage, 
shall  be  living  at  the  deaih  of  the  testator, 
such  will  shall  be  deemed  revoked,  unless 
provision  shall  have  been  made  for  such 
issue,  by  some  settlement,  or  unless  such 
issue  shall  be  provided  for  in  the  will,  or  in 
such  way  mentioned  therein,  as  to  show 
intention  not  to  make  such  provision  ;  and 
no  other  evidence  to  rebut  the  presumption 
of  such  revocation  shall  be  received.  A  will 
executed  by  an  unmarried  woman  shall  be 
deemed  revoked  by  her  subsequent  marriage. 
Whenever  a  testator  shall  have  a  child  born, 
after  the  making  of  his  will,  either  in  his 
lifetime,  or  after  his  death,  and  shall  die, 
leaving  such  child,  so  after  born,  unprovided 
for  by  any  settlement,  and  neither  provided 
for,  nor  in  any  way  mentioned  in  his  will, 
every  such  child  shall  succeed  to  the  same 
portion  of  the  father's  real  and  personal  estate. 


as  would  have  been  descended  or  distributed 
to  such  child,  if  the  father  had  died  intes- 
tate ;"  N.  Y.  Revis.  Stats.,  6th  ed.,  vol.  iii, 
pp.  138,  141,  144,  145.  As  to  power  of*  a 
married  woman  over  her  separate  estate,  see 
Id.  240. 

See  also  N.  H.  Compiled  Stats.  (1853),  pp. 
45,  381,  401  ;  Thompson's  Dig.  of  the  Ls.  of 
Fla.  192,  193  ;  Oldham  and  White's  Dig.  of 
the  Ls.  of  Texas  (1859),  pp.  464,  455  :  New 
Dig.  of  the  Ls.  of  Geo.,  by  T.  R.  R.  Cobb, 
vol.  ii,  pp.  1128,  &c.  ;  Matthews's  Dig.,  vol. 
ii,  pp.  859,  Ac.  ;  Revis.  Stats,  of  Vt.  (1839), 
pp.  254,  &c.  ;  2  Compiled  Ls.  of  Mich.,  pp. 
862,  <fec.  ;  Code  of  Ala.  (1852),  pp.  327,  &o.  ; 
Md.  Code,  vol.  i  (1860),  pp.  684,  ka.  ; 
Wood's  Cal.  Dig.  (1860),  pp.  737,  &c.  ;  Gen. 
Stats.  Mass.  (1860),  pp.  475,  &c.  ;  Revis. 
Stats.  Maine  (1857),  pp.  453,  Ac.  ;  Nixon's 
Dig.  N.  J.  (1861),  pp.  913,  Ac.  ;  Revis.  Code 
of  N.  C.  (1855),  pp.  606,  &c. ;  Revis.  Stats. 
Ky.  (180U),  vol.  ii,  pp.  456,  Ac.  ;  2  Revis. 
Stats,  of  0.  (1861),  pp.  1015,  &c.  ;  Ls.  of 
Iowa  (1860),  pp.  406,  Ac;  Stats,  of  S.  C, 
vol.  v,  pp.  106,  ka.  ;  Caruthers  &  Nicholson's 
Stat.  Ls.  of  Tenn.,  pp.  706,  Ac.  ;  Ls.  of  Del. 
Revis.  Code  (1851),  pp.  272,  Ac;  How.  & 
Hutch.  Stat.  Ls.  Missi.,  pp.  385,  Ac;  Dig. 
of  the  Stats,  of  Ark.,  pp.  989,  993. 

Nearly  all  the  statutes  on  this  subject,  re- 
quire that  a  person  should  be  of  the  age  of 
twenty-one  years,  to  make  a  will,  either  of 
real  or  personal  estate  ;  but  in  New  York,  as 
has  been  seen,  a  male  of  the  age  of  eighteen, 
and  a  female  who  has  reached  sixteen,  may 
make  a  will  of  their  personalty  ;  in  Virginia, 
North  Carolina,  Kentucky,  Alabama,  Cali- 
fornia, and  Arkansas,  any  person  who  has  at- 
tained the  age  of  eighteen  years,  may  bequeath 
their  personal  property  by  will  ;  and  in  Ma- 
ryland and  Mississippi,  a  female  of  eighteen 
may  make  a  will  of  her  real  estate. 

The  number  of  witnesses  required,  is  dif- 
ferent in  the  different  States.  In  most  of 
them,  three  is  required  ;  but  in  Pennsylvania, 
New  York,  California,  Arkansas,  Ohio,  Del- 
aware, Tennessee,  Kentucky,  North  Carolina, 
Texas,   Michigan,  Iowa,   and  Virginia,  two 


OF   A   WILL.  415 

Statute  of  Frauds,  however,  a  nuncupative  testament,  where  the 
estate  bequeathed  exceeded  the  value  of  thirty  pounds,  was  sur- 
rounded by  so  many  requirements  as  to  cause  its  complete  dis- 
use, (j)  But  no  provision  was  made  for  guarding  the  execution  of 
a  written  will  of  personal  *estate;  although  by  the  same  p^oQ^-, 
statute(/-)  a  will  of  real  estate  was  required  to  be  attested  l  *"  J 
by  three  or  four  witnesses.  No  attestation,  therefore,  was  re- 
quired to  a  will  of  personal  estate,  nor  was  it  even  necessary  that 
such  a  will  should  be  signed  by  the  testator.  Thus,  instructions 
for  a  will  committed  to  writing,  given  by  a  person  who  died  be- 
fore the  instrument  could  be  formally  executed,  though  such  in- 
structions were  neither  reduced  into  writing  in  the  presence  of 
the  testator,  nor  even  read  over  to  him,  have  been  held  to  operate 
as  fully  as  a  will  itself  (f)  It  was,  however,  provided  by  the  Stat- 
ute of  Frauds,  that  no  will  in  writing  of  personal  estate  should 
be  repealed  or  altered  by  word  of  mouth  only,  except  the  same 
were,  in  the  life  of  the  testator,  committed  to  writing,  and  after 
the  writing  thereof,  read  unto  the  testator,  and  allowed  by  him, 
and  proved  to  be  so  done  by  three  witnesses  at  the  least. (7?i)i 

(j)   Stat.  29  Car.  II,  c.  3,  ss.  19-21,  explained  by  stat.  4  Anne,  c.  16,  s.  14. 

(X)   Sect.  5. 

(I)  Carey  v.  Askew,  2  Bro.  C.  C.  58  ;  S.  C.  1  Cox,  241. 

(vi)  Stat.  29  Car.  II.  c.  3,  s.  22. 


only  are  necessary.  The  statute  of  Missis-  $200  ;  in  Tennessee,  at  $250  ;  and  in  Mieh- 
sippi  requires  three  witnesses  to  a  will  of  real  igan,  Iowa,  and  Maryland,  at  $300.  But 
estate,  but  one  is  sufficient  to  a  will  of  per-  in  New  York,  Florida,  Massachusetts,  and 
sonalty.  In  some  of  the  States,  it  is  requi-  Ohio,  no  nuncupative  will  can  be  deemed 
site  that  these  should  be  subscribing  witness-  valid,  unless  proved  as  required  by  the  stat- 
es, as  in  New  Jersey,  but  it  does  not  follow  utes  of  those  States ;  and  in  California,  Ala- 
tbat  they  must  all  join  in  proving  the  will  ;  bama,  and  Arkansas,  no  such  will  can  be 
Meckle  v.  Matlack,  2  Harrison's  R.  86.  valid  unless  under  the  value  of  $500,  nor 
There  is  a  diversity,  too,  as  respects  the  unless  proved  as  the  legislative  acts  of  those 
making  of  nuncupative  wills.  In  almost  all  respective  States  demand.  It  is,  however, 
the  States  they  are  allowed,  but  the  statutes  expressly  enacted  by  the  statutes  of  the  dif- 
enjoin,  that  if  the  personal  property  thereby  ferent  States,  that  nothing  therein  contained 
bequeathed  should  be  beyond  a  certain  value,  shall  be  construed  to  deprive  a  mariner  at 
they  must  be  strictly  proved  in  the  manner  sea,  or  a  soldier  in  actual  military  service, 
pointed  out  in  the  respective  acts.  In  Texas,  from  making  such  will  as  he  might  have 
this  sum  is  fixed  at  .$30,  and  in  South  Caro-  done  before  those  acts  became  laws. 
Una  at  $10  ;  in  New  Jersey,  at  $80  ;  in  Penn-  Whether  a  seal  is  necessary  to  the  valid- 
sylvania,  New  Hampshire,  Alabama,  Maine,  ity  of  a  testament  is  determined  by  the  stat- 
and  Mississippi,  at  $100  ;  in  Georgia,  at  £.''0  ;  utes  of  the  several  States. 
in  Vermont,  North  Carolina,  and  Delaware,  at  '  See  ante,  p.  295,  note. 


416.  OF   PERSONAL   ESTATE   GENERALLY. 

By  the  recent  act  for  the  amendment  of  the  laws  with  respect 
to  A\nlls,  every  will  of  personal  estate  must  now  be  in  writing, 
and  signed  at  the  foot  or  end  thereof  by  the  testator  or  by  some 
other  person  in  his  presence  and  by  his  direction ;  and  such  sig- 
nature shall  be  made  or  acknowledged  by  the  testator,  in  the 
presence  of  two  or  more  witnesses  present  at  the  same  time ;  and 
such  witnesses  shall  attest  and  shall  subscribe  the  will  in  the  pres- 
ence of  the  testator. (n)^  The  act,  in  fact,  requires  the  same  mode 
of  execution  and  attestation  to  every  will,  whether  the  property 
be  real  or  personal.  But  an  exception  is  made  in  favor  of  sol- 
diers being  in  actual  military  service,  that  is,  on  an  exp edition, (o) 
and  of  *niarines  and  seamen,  being  at  sea,  who  may  dis- 
'-  -*  pose  of  their  personal  estate  as  they  might  have  done  be- 
fore the  making  of  the  act; (2?)  a  similar  exception  was  contained 
in  the  Statute  of  Frauds. ((7)  The  wills  of  soldiers  on  an  expedi- 
tion may  accordingly  be  made  by  an  unattested  writing,  or  by  a 
mere  nuncupative  testament  or  declaration  of  their  will  by  word 
of  mouth,  made  before  a  sufficient  number  of  witnesses.  But 
the  wills  of  petty  officers  and  seamen  in  the  royal  navy,  and  of 
marines  and  non-commissioned  officers  of  marines,  so  far  as  re- 
lates to  any  wages,  pay,  prize  money,  or  other  moneys  payable  in 
respect  of  services  in  her  majesty's  navy,  are  required  by  act  of 
Parliament(r)  to  be  executed  in  the  presence  of  and  to  be  attested 
by  the  captain  of  the  ship,  or  certain  other  officers  or  persons 
mentioned  in  the  act;  and  the  wills  of  such  persons  are  also 
guarded  by  other  requisitions  in  order  to  prevent  their  being  im- 
posed upon.^  And  by  the  Merchant  Shipping  Act,  1854,  it  is 
now  provided  that  the  Board  of  Trade  may,  in  its  discretion,  re- 
fuse to  pay  or  deliver  the  wages  or  effects  of  any  deceased  mer- 
chant seaman  to  any  person  claiming  to  be  entitled  thereto  under 
any  will  made  on  board  ship,  unless  such  will  is  in  writing  and  is 

{v)  Stat.  7  Will.  IV  &  1  Vict.  c.  26,  s.  9,  explained  by  stat.  15  &  16  Vict.  c.  24.  See 
Principles  of  the  Law  of  Real  Property,  168,  169,  4th  ed.  ;  175,  176,  6th  ed.  ;  183,  184, 
6th  ed. 

(o)  Drummond  v.  Parish,  3  Curt.  522. 

(p)  Stat.  7  Will.  IV  &  1  Vict.  c.  26,  s.  11. 

(q)  Stat.  29  Car.  II,  c.  3,  s.  23. 

{r)  Stat.  11  Geo.  IV  &  1  Will.  IV,  c.  20,  ss.  48-51 ;  7  Will.  IV  &  1  Vict  c.  26,  s.  12; 
Williams  on  Executors,  pt.  1,  bk.  4,  ch.  4. 

• ' ■ 

1  See  ante,  p.  295,  note. 


OF    A    WILL.  417 

signed  or  acknowledged  by  tlie  testator  in  the  presence  of  the 
master  or  first  or  only  mate  of  the  ship,  and  is  attested  by  such 
master  or  mate.  And  the  board  may,  in  its  discretion,  refuse  to 
pay  or  deliver  any  such  wages  or  effects  to  any  person,  not  being 
related  to  the  testator  by  blood  or  marriage,  who  claims  to  be  en- 
titled thereto  under  a  will  made  elsewhere  than  on  board  ship, 
unless  such  will  is  in  writing  and  is  signed  or  acknowledged  by 
the  testator  in  the  presence  of  two  witnesses,  one  of  whom  is 
some  shipping  master  appointed  under  the  act,  *or  some  p^j-ono-i 
minister  or  ofiSciating  minister  or  curate  of  the  place  in  *-  -• 
which  the  same  is  made,  or,  in  a  place  where  there  are  no  such 
persons,  some  justice  of  the  peace,  or  some  British  consular  offi- 
cer, or  some  officer  of  customs,  and  is  attested  by  such  wit- 
nesses.(5)  By  the  act  to  amend  the  laws  with  respect  to  wills  it 
is  provided,  that  no  will  or  codicil,  or  any  part  thereof,  shall  be 
revoked,  otherwise  than  by  the  marriage  of  the  testator  or  testa- 
trix (which  will  of  itself  eifect  a  revocation), (^)  or  by  another 
will  or  codicil  executed  in  the  manner  thereby  required,  or  by 
some  writing  declaring  an  intention  to  revoke  the  same,  and  exe- 
cuted in  the  manner  in  which  a  will  is  thereby  required  to  be 
executed,  or  by  the  burning,  tearing,  or  otherwise  destroying  the 
same  by  the  testator,  or  by  some  person  in  his  presence,  and  by 
his  direction,  with  the  intention  of  revoking  the  same.(M)^ 

A  will  of  personal  estate  was  formerly  required  to  be  made 
according  to  the  law  of  the  domicile  of  the  testator  at  the  time  of 
his  decease.(a:)  A  person's  domicile  is  the  place  which  he  makes 
his  home.  But  with  regard  to  many  persons,  the  circumstances 
connected  with  their  change  of  residence  are  such  as  to  render  it 
an  exceedingly  difficult  question  of  fact, — what  country  is  their 
domicile  at  any  given  time.  In  order  to  remedy  the  inconve- 
niences thus  occasioned,  it  is  provided  by  a  recent  act,(^)  that 
\vith  regard  to  the  persons  who  may  die  after  the  6th  of  August, 

(s)  Stat.  17  &  18  Vict.  c.  104,  s.  200. 

(0   Stat.  7  Will.  IV  &  1  Vict.  c.  26,  s.  18.     See  Principles  of  the  Law  of  Ileal  Property, 
153,  1st  ed.  ;  163,  2d  ed.  ;   170,  3d  ed. ;   171,  4th  ed.  ;   179,  5th  ed.  ;   187,  tJth  ed. 
(u)  Stat.  7  Will.  IV  &  1  Vict.  c.  26,  s.  20. 
(x)  Stanley  v.  Bernes,  3  Hagg.  373.  (y)   Stat.  24  &  25  Vict.  c.  114. 

1  See  ante,  p.  295,  note. 
27 


418  OF    PERSONAL   ESTATE   GENERALLY. 

1861,  the  date  of  the  act,  every  testamentary  instrument  made 
out  of  the  United  Kingdom  by  a  British  subject,  whatever  may 

be  his  domicile  *at  the  time  of  making  it,  or  at  his  death, 
'-  -'  shall,  as  regards  personal  estate,  be  held  to  be  well  exe- 
cuted for  the  purpose  of  being  admitted  to  probate,  if  the  same 
be  made  according  to  the  forms  required  either  by  the  law  of  the 
place  where  the  same  was  made,  or  by  the  law  of  the  place  where 
such  person  was  domiciled  when  the  same  was  made,  or  by  the 
laws  then  in  force  in  that  part  of  her  majesty's  dominions  where 
he  had  his  domicile  of  origin. (z)^  It  is  further  provided,(«)  that 
every  testamentary  instrument  made  within  the  United  Kingdom 
by  any  British  subject,  whatever  may  be  his  domicile  at  the  time 
of  making  the  same,  or  at  his  death,  shall,  as  regards  personal 
estate,  be  held  to  be  well  executed,  and  shall  be  admitted  to  pro- 
bate, if  the  same  be  executed  according  to  the  forms  required  by 
the  laws  of  that  part  of  the  United  Kingdom  where  the  same  is 
made.  And  no  testamentary  instrument  is  to  be  revoked  or  to 
become  invalid,  nor  is  the  construction  thereof  to  be  altered  by 
reason  of  any  subsequent  change  of  domicile  of  the  person  mak- 
ing the  same.(6)  Another  act  of  Parliament,  passed  on  the  same 
day,(c)  provides  that  whenever  her  majesty  shall,  by  convention 
with  any  foreign  state,  agree  that  provisions  to  the  effect  of  the 
enactments  therein  contained  shall  be  applicable  to  the  subjects  of 
her  majesty  and  of  such  foreign  state  respectively,  her  majesty  may 
by  order  in  council  direct  that  after  the  publication  of  such  order 
in  the  "London  Gazette,"  no  ]  ritish  subject  resident  at  the  time 
of  his  death  in  the  foreign  country  named  in  such  order,  shall 
be  deemed,  under  any  circumstances,  to  have  acquired  a  domi- 
cile in  such  country,  uiiles  he  shall  have  been  resident  in 
such  country  for  one  year  immediately  preceding  his  decease, 
and  also  have  made  and  deposited  in  a  public  office  of  such 

foreign  *country  (such  office  to  be  named  in  the  order  in 
^  -I  council)  a  declaration  in  writing  of  his  intention  to  be- 
come domiciled  in  such  foreign  country.  And  any  British  sub- 
ject dying  resident  in  such  foreign  country,  but  without  having 

(2)  Stat.  24  &  25  Vict.  c.  114,  s.  1.  (A)   Sect.  3. 

(a)  Sect.  2.  (e)  Stat.  24  &  25  Vict.  c.  121. 


1  For  a  provision  somewhat  similar  to  that    of  Ky.  (1860),  p.  459,  sec.  8. 
referred  to  in  the  text,  see  2  Revised  Statutes 


OF  A   WILL.  419 

SO  resided,  and  made  such  declaration  as  aforesaid,  shall  be  deem- 
ed, for  all  purposes  of  testate  or  intestate  succession  as  to  mova- 
bles, to  retain  the  domicile  he  possessed  at  the  time  of  his  going 
to  reside  there.(fl()  Similar  provisions  may  be  made  afterany 
such  convention,  with  regard  to  the  subjects  of  such  foreign 
country  dying  in  Great  Britain.(e)  But  this  act  is  not  to  apply 
to  any  foreigners  who  may  have  obtained  letters  of  naturaliza- 
tion in  any  part  of  her  majesty's  dominions. (/) 

Connected  with  the  subject  of  wills  is  that  of  donations  mortis 
causa,  which  may  here  be  noticed.  A  donation  mortis  causa  is 
a  gift  made  in  contemplation  of  death,  to  be  absolute  only  in 
case  of  the  death  of  the  giver.(^)  Being  a  gift,  it  can  be  made 
only  of  chattels,  the  property  in  which  passes  by  delivery  ;(A) 
although  a  bond  debt  has,  contrary  to  this  principle, (?')  been 
allowed  to  pass  by  way  of  donation  mortis  causa  by  delivery  of 
the  bond.(A-)  And  a  policy  of  life  assurance  has  also  recently 
been  held  a  proper  subject  for  such  a  gift,(^  also  bills  or  notes, 
though  payable  to  order  and  unindorsed. (m)  An  actual  or  con- 
structive delivery  of  the  subject  of  gift  to  the  donee  is  essential 
to  a  donation  *  mortis  causa  ;{n)  it  must  also  be  made  in  r-^oA-n 
expectation  of  the  donor's  decease,(o)  and  must  be  on  ^  -■ 
condition  that  the  gift  be  absolute  only  on  that  event.(jo)  It  is 
no  objection,  however,  that  the  donation  is  clogged  with  a  trust 
to  be  performed  by  the  donee. (g-)     A  donation  mortis  causa  is  re- 

(d)  Stat.  24  &  25  Vict.  c.  121,  s.  1.  (/)  Sect.  3. 

(e)  Sect.  2. 

{g)  Inst.  tit.  7,  De  Donationibus,  cited  by  Lord  Loughborough,  in  Tate  v.  Hilbert,  2  Ves. 
Jun.  119;  Walter  v.  Hodge,  2  Swanst.  99. 

{h)  See  a?ite,  p.  33  ;  Miller  v.  Miller,  3  P.  Wms.  356. 

(i)  Duffield  V.  Elwes,  1  Sim.  &  Stu.  244. 

{1-)  Snellgrove  v.  Bailey,  3  Atk.  214  ;  and  see  Boutts  v.  Ellis,  4  De  Gex,  M.  &  G.  249  ; 
Moore  v.  Darton,  4  De  Gex  &  Smale,  517. 

(/)  Wittw.  Amis,  1  Best  &  Smith,  109,  E.  C.  L.  R.  vol.  101. 

(m)  Veal  v.  Veal,  27  Beav.  303  ;  Rankin  v.  Weguelin,  27  Beav.  309. 

(w)  Wood  V.  Turner,  2  Ves.  Sen.  431 ;  Bryson  v.  Brownrigg,  9  Ves.  1  ;  Bunn  v.  Mark- 
ham,  7  Taunt.  224,  E.  C.  L.  R.  vol.  2  ;  Ruddell  v.  Dobree,  10  Sim.  244  j  Farquharson  v. 
Cave,  2  Coll.  356;  Powell  v.  Hellicar,  26  Beav.  261. 

(o)   Tate  V.  Hilbert,  2  Ves.  Jun.  Ill  ;  4  Bro.  C.  C.  286. 

ip)  Edwards  v.  Jones,  1  My.  &  Craig,  226  ;  Staniland  v.  Willott,  3  Mac.  A  Gord.  664. 

(y)  Blount  v.  Burrow,  4  Bro.  C.  C.  72  ;  Hills  v.  Hills,  8  Mee.  &  Wels.  401. 


420 


OF    PERSONAL   ESTATE    GENERALLY. 


vocable  by  the  donor  during  bis  life,(r)  and  after  bis  decease  it  is 
subject  to  bis  debts,(.§)  and  also  to  legacy  duty. [ty 


(r)  7  Taunt.  232,  E.  C.  L.  R.  vol.  2. 
(s)  1  P.  Wins.  406  ;  2  Ves.  Sen.  434. 
(0   Stat.  36  Geo.  Ill,  e.  62,  s.  7  ;  8  &  9  Vict.  c.  76,  s.  4. 


1  An  endeavor  to  determine  the  nature  and 
requisites  of  donations  causa  mortis,  by  com- 
paring the  English  and  American  decisions 
with  the  doctrines  and  principles  of  the  civil 
law,  must  produce  great  embarrassment,  and 
perhaps  end  in  confusion,  as  will  be  seen  by 
a  review  of  the  two  cases  of  Wells  v.  Tucker, 
3  Binn.  R.  370,  and  Nicholas  v.  Adams,  2 
Whart.  R.  17.  In  contrasting  these  cases,  it 
appears  that  in  Pennsylvania  this  subject  has 
undergone  considerable  modification,  as  re- 
gards the  sentiments  entertained  of  its  quali- 
ties and  attributes  ;  in  the  former.  Chief  Jus- 
tice Tilghman  says,  "  A  donatio  causa  mor- 
tis, is  a  gift  of  a  personal  chattel,  made  by  a 
person  in  his  last  illness,  subject  to  an  im- 
plied condition,  that  if  the  donor  recovers, 
the  gift  shall  be  void.  So  also  it  shall  be 
void  if  the  donee  dies  before  the  donor.  In 
this,  and  some  other  circumstances  (being 
subject  to  the  debts  of  the  donor,  Ac),  it  is 
in  the  nature  of  a  legacy.  ...  It  is  a  wise 
principle  of  our  law,  that  the  delivery  is  es- 
sential, because  delivery  strengthens  the  evi- 
dence of  the  gift.  Too  much  care  cannot  be 
taken  in  insisting  on  the  most  convincing  evi- 
dence, in  cases  of  this  kind,  for  these  dona- 
tions do,  in  effect,  amount  to  a  revocation  ^/o 
ta?ito,  of  written  wills  ;  and  not  being  subject 
to  the  forms  prescribed  for  nuncupative  wills, 
they  are  certainly  of  a  dangerous  nature. 
Now  let  us  consider  the  delivery  which  was 
made  in  this  case.  In  the  first  place  it  was 
not  to  the  donee,  but  to  the  donor's  wife,  to 
be  delivered  over.  There  is  no  objection  to 
this  mode  of  delivery.  Whether  made  to  the 
donee  immediately,  or  to  another  for  his  use, 
is  immaterial.  .  .  .  Without  absolutely  com- 
mitting myself,  I  incline  to  the  opinion,  that 
in  this,  as  in  several  other  particulars,  it  par- 
takes of  the  nature  of  a  legacy,  and  is  revoc- 
able. .  .  .  Upon  the  whole,  then,  the  dona- 
tion was  perfect  ;  it  was  made  in  the  testa- 
tor's last  illness,  and  accompanied  with  the 
delivery  of  the  bonds,  which  is  all  that  the 


nature  of  the  case  admits  of."  Subsequently, 
in  the  case  Nicholas  v.  Adams,  Chief  Justice 
Gibson,  after  quoting  from  the  civil  law,  and 
saying  that  there  is  not  one  word  of  sickness 
from  first  to  last,  proceeds  :  "  I  would,  there- 
fore, briefly  define  a  donatio  caiisa  mortis  to 
be  a  conditional  gift,  dependent  on  the  con- 
tingency of  expected  death.  ...  In  the  do- 
natio  causa  nnurtis,  both  are  implied  from  the 
occasion.  But  it  is  certainly  not  necessary 
to  be  in  such  extremity  as  is  requisite  to  give 
effect  to  a  nuncupation,  which  is  sustained 
from  necessity  merely,  where  the  donor  was 
prevented  by  the  urgency  of  dissolution,  from 
making  a  formal  bequest.  Donatio  causa 
Tnortis  is  sometimes  spoken  of  as  being  dis- 
tinct from  a  gift  inter  vivos  ;  the  former  hav- 
ing sometimes  been  supposed  to  be  made  in 
reference  to  the  donor's  death,  and  not  to 
vest  before  it,  but  inaccurately,  as  it  seems  to 
me  ;  as  this  gift,  like  every  other,  is  not  ex- 
ecutory, but  executed  in  the  first  instance, 
by  delivery  of  the  thing,  though  defeasible  by 
reclamation,  the  contingency  of  survivorship, 
or  deliverance  from  peril.  The  gift  is  conse- 
quently inter  vivos.  All  agree  that  it  has  no 
property  in  common  with  a  legacy,  except 
that  it  is  revocable  in  the  donor's  lifetime, 
and  subject  to  his  debts  in  the  event  of  defi- 
ciency. I,  therefore,  cannot  subscribe  to  the 
doctrine,  that  the  making  of  a  subsequent 
will,  is  conclusive  evidence  of  the  gift  having 
not  been  made  during  such  a  last  illness,  as 
the  law  requires  ;  and  that  if  the  degree  of 
sickness  was  such  as  to  induce  an  expectation 
of  immediate  death,  the  subsequent  making 
of  a  formal  will  is  conclusive  that  the  donor 
had  escaped  from  the  peril  of  death,  which  he 
supposed  to  impend  at  the  time  of  the  gift ; 
and  that  under  these  circumstances,  it  cannot 
take  effect  as  a  donatio  causa  mortis.  ...  To 
say  nothing  of  the  fallacy,  that  the  making  of 
a  will  indicates  even  a  respite  from  sickness, 
or  the  apprehension  of  death,  a  disposition 
by  donatio  causa  mortis,  is  not  to  be  dis- 


OF   A   WILL. 


421 


The  mode  of  operation  of  a  will  of  personalty  is  essentially 
different  from  tlie  operation  of  a  will  of  lands  in  this  respect, 


turbed  by  the  alternation  of  hope  and  de- 
spair, dependent  on  the  doubtful  spinning  of 
the  die,  but  only  by  the  turn-up  of  life." 

By  the  still  more  recent  decision  of  Head- 
ley  V.  Kirby,  18  Pa.  St.  R.  326,  Judge  Low- 
rie  utterly  repudiates  the  idea,  that  the  civil 
law  can  be  of  any  practical  assistance  in  de- 
termining the  attributes  of  donations  of  this 
description,  saying,  "Though  we  derive  the 
law  as  to  du7iatio»es  mortis  causa,  from  the 
Roman  lawyers,  yet  their  rules  on  that  sub- 
ject are  no  guide  to  us  in  the  administration 
of  our  law  •  for  the  stringent  severity  of  their 
law  of  wills,  occasioned  and  excused  larger 
equitable  e.xceptions,  by  way  of  gifts  in  pros- 
pect of  death,  than  can  at  all  be  sanctioned 
under  our  much  more  reasonable  statute  of 
wills." 

What  then  is  a  donatio  causa  mortis,  con- 
sidered with  regard  to  the  American  cases, 
only?  Many  of  them  define  it  as  a  gift  made 
by  a  person  in  his  last  illness,  subject  to  the 
implied  condition,  that  if  the  donor  recovers 
the  gift  shall  be  void  ;  Wells  v.  Tucker,  3 
Bin.  R.  370;  Weston  v.  Hight,  17  Maine  R. 
287;  Grattan,  Admr.,  v.  Appleton  et  aJ.,  3 
Story's  R.  755  ;  Harris  v.  Clark  et  al.,  Esrs., 

2  Barb.  S.  R.  94;  Hebb  et  al.,  Esrs.,  v. 
Hebb,  Exrx.,  5  Gill's  R.  506  ;  Lee  v.  Luther, 

3  Wood  k  Min.  R.  524;  Michener  v.  Dale,  23 
Pa.  St.  R.  59  ;  Merchant  v.  Merchant,  2 
Bradf.  R.  432  ;  while  others  say,  that  it  must 
be  made  in  expectation  of  death  ;  Nicholas 
r.  Adams,  2  Whart.  R.  17  ;  Raymond  v.  Sel- 
lick  et  al.,  Admrs.,  10  Conn.  R.  480  ;  Holly 
V.  Adams,  16  Vt.  R.  206  ;  Smith,  Admr.,  v. 
Downey,  Admr.,  3  Ired.  E.  R.  268;  Dole, 
Admr.,  v.  Lincoln,  31  Maine  R.  422;  Hunt- 
ington, Exr.,  V.  Gilmore,  14  Barb.  S.  R.  243  ; 
Michener  v.  Dale,  23  Pa.  St.  R.  59  ;  Mer- 
chant V.  Merchant,  2  Bradf.  R.  432 ;  but  in 
all  of  the  latter  cases,  the  donor  was  actually 
ill  of  the  sickness  of  which  he  died ;  if,  how- 
ever, the  donor  is  neither  out  of  health,  nor 
in  apprehension  of  death,  he  cannot  make  a 
valid  doti alio  mortis  cuusn  ;  Smith  et  al.  v, 
Kittridge,  Admr.,  21  Vt.  R.  238  ;  Sessions  v. 
Moseley,  4  Cush.  R.  87. 

In  all  cases  of  gifts  in  expectation  of  death, 


delivery  is  absolutely  essential  ;  Bowers  v. 
Hurd,  Admr.,  10  Mass.  R.  427  ;  Windows  v, 
Mitchell,  1  Murph.  R.  127  ;  Shirley  v.  Whit- 
head,  1  Ired.  E.  R.  130  ;  Craig  v.  Craig,  2 
Barb.  C.  R.  78  ;  Lewis  v.  Walker,  8  Humph. 
R.  503  ;  Jones,  Admr.,  v.  Deyer,  16  Ala.  R. 
221  ;  McCraw  v.  Edwards  et  al.,  6  Ired.  E. 
R.  202  ;  Chevallier,  Admr.,  v.  Wilson,  1  Tex. 
R.  161  ;  Hitch  V.  Davis  et  al.,  3  Md.  C  Decs. 
266  ;  Michener  v.  Dale,  23  Pa.  St.  R.  59  ; 
Singleton  v.  Cotton,  23  Geo.  R.  261.  If  pos- 
sible, the  gift  should  be  put  into  the  hands  of 
the  donee  ;  Harris  v.  Clark,  3  Comst.  R.  93  ; 
McDowell  V.  Murdock,  1  N.  &  MeCord's  R. 
239  ;  Pennington,  Admr.,  v.  Gettings,  Exr., 
2  G.  &  Johns.  R.  208  ;  Windows  v.  Mitchell, 
1  Murph.  R.  127  ;  Smith,  Admr.,  v.  Downey, 
Admr.,  3  Ired.  E.  R.  268  ;  Miller  v.  Jeffress 
et  al.,  4  Gratt.  R.  479  ;  Cutting  v.  Gilman, 
41  N.  H.  R.  147  ;  but,  if  not  capable  of  ac- 
tual delivery,  to  the  donee,  the  means  of  ob- 
taining it  should  be  delivered ;  Harris  v. 
Clark,  3  Comst.  R.  93,  and  other  cases  just 
cited.  That  an  after-acquired  possession  of 
the  thing  given,  or  a  previous  and  continuing 
possession  of  it,  will  not  dispense  with  the  ne- 
cessity of  a  delivery,  see  Miller  v.  Jeffress  et 
al.,  4  Gratt.  R.  479,  where  Judge  Baldwin 
says:  "A  delivery  is  indispensable  to  the 
validity  of  a  donatio  mortis  causa.  It  must 
be  an  actual  delivery  of  the  thing  itself,  as  of 
a  watch  or  a  ring  ;  or  of  the  means  of  getting 
the  possession  and  enjoyment  of  the  thing,  as 
of  the  key  of  a  trunk  or  a  warehouse,  in 
which  the  subject  of  the  gift  is  deposited  ;  or 
if  the  thing  be  in  action,  of  the  instrument  by 
using  which,  the  chose,  is  to  be  reduced  into 
possession,  as  a  bond,  or  a  receipt,  or  the 

like It  is  not  the  possession  of  the 

donee,  but  the  delivery  to  him  by  the  donor, 
which  is  material  in  a  donatio  mortis  causa  ; 
the  delivery  stands  in  the  place  of  nuncupa- 
tion, and  must  accompany  and  form  a  part  of 
the  gift ;  an  after-acquired  possession  of  the 
donee  is  nothing  ;  and  a  previous  and  con- 
tinuing possession,  though  by  the  authority 
of  the  donor,  is  no  better.  The  donee,  by 
being  the  debtor,  or  bailee,  or  tru.^tee  of  the 
donor,  in  regard  to  the  subject  of  the  gift, 


422  OF    PERSONAL   ESTATE   GENERALLY. 

that  in  strictness  the  appointment  of  an  executor  was  formerly 


stands  upon  no  better  footing  than  if  the  debt 
or  duty  were  owing  from  a  third  person.  A 
debt  or  duty  cannot  be  released  by  mere 
parol,  without  consideration  ;  and  where 
there  is  nothing  to  surrender  by  delivery,  the 
only  result  is,  that  in  such  a  case,  there  can- 
not be  a,  donatio  mortis  causa;  and  the  re- 
lease, without  valuable  consideration  there- 
for, must  be  by  testament,  or  by  some  instru- 
ment of  writing  which  would  be  effectual  for 
the  purpose  inter  vivos. ^' 

But  a  delivery  to  a  third  person  to  be  by 
him  delivered  over  to  the  donee,  has  been  held 
a  good  delivery  ;  Wells  v.  Tucker,  3  Bin.  R. 
370  ;  Bonneman,  Admr. ,  v.  Sidlinger  et  al., 
15  Maine  R.  429,  and  21  Maine  R.  185  ; 
Coutant  V.  Schuyler  et  al.,  1  Paige's  R.  316  ; 
Jones,  Admr.,  v.  Deyer,  16  Ala.  R.  221  ; 
Dale,  Admr.,  v.  Lincoln,  31  Maine  R.  422; 
Sessions  v.  Moseley,  4  Gush.  R.  87  ;  Miche- 
ner  v.  Dale,  23  Pa.  St.  R.  59  ;  Dresser  v. 
Dresser,  46  Maine  R.  48  ;  and  in  the  case  of 
Richardson  v.  Adams,  10  Yerg.  R.  273,  where 
the  testator  gave  expre.ss  directions  to  a  re- 
siduary legatee,  to  deliver  an  article  of  prop- 
erty to  an  individual  as  a  gift,  and  such 
legatee  promised  the  testator  that  he  would 
deliver  it,  the  Court  of  Chancery  declared  the 
legatee  a  trustee,  and  enforced  a  delivery  of 
the  article.  But  the  court  refused  to  extend 
this  rule,  and  in  the  following  case  declared 
no  trust  was  created,  because  the  promise  was 
not  made  to  the  testatrix  by  the  residuary 
legatee,  but  by  an  executor,  who  subse- 
quently declined  acting  ;  Sims  v.  Walker,  8 
Hump.  R.  503  ;  and  the  delivery  of  any  such 
gift,  in  trust  for  benevolent  purposes,  has 
been  held  void  ;  Dole,  Admr.,  v.  Lincoln,  31 
Maine  R.  422. 

Gifts  causa  mortis,  differ  from  those  inter 
vivos,  in  that  they  may  be  made  to  a  wife, 
are  subject  to  the  debts  of  the  donor,  and 
revocable  by  him  during  his  life,  besides 
being  subject  to  the  contingency  of  the  donee 
surviving  the  donor  ;  Harris  v.  Clark  et  al., 
Exrs.,  2  Barb.  S.  R.  94;  Wells  v.  Tucker,  3 
Bin.  R.  370;  Meach  v.  Meaeh  et  al.,  24  Vt. 
R.  591 ;  though  Chief  Justice  Gibson,  in 
Nicholas  v.  Adams,  as  we  have  seen,  denies 
that  there  is  any  difference  between  them,  at 


the  time  of  the  gift,  where  he  says:  "This 
gift,  like  every  other,  is  not  executory,  but 
executed,  in  the  first  instance,  by  delivery  of 
the  thing,  though  defeasible  by  reclamation, 
the  contingency  of  survivorship,  or  deliver- 
ance from  peril.  The  gift  is  consequently 
i7iter  vivos.^^  In  those  respects  in  which 
these  gifts  differ  from  those  i7/ter  vivos,  they 
resemble  legacies  ;  thus,  they  are  subject  to 
the  debts  of  the  donor;  Wells  v.  Tucker,  3 
Bin.  R.  370;  Bonnerman,  Admr.,  v.  Sidlin- 
ger et  al.,  15  Maine  R.  429 ;  Harris  v.  Chirk 
et  al.,  Exrs.,  2  Barb.  S.  R.  94;  Gaunt  v. 
Tucker,  18  Ala.  R.  27;  Huntington,  Exr.,  v. 
Gilmore,  14  Barb.  S.  R.,  243;  Michener  v. 
D.ale,  23  Pa.  St.  R.  59  ;  Bloomer  v.  Bloomer, 
2  Bradf.  R.  339  ;  and  they  are  revocable  by 
the  donor  during  his  life,  as  well  as  given 
upon  the  implied  condition,  that  if  the  donee 
dies  before  the  donor,  the  gift  shall  fail ; 
Wells  V.  Tucker,  3  Bin.  R.  370  ;  Huntington, 
Exr.,  V.  Qihuore,  14  Barb.  S  R.  243;  Parker 
V.  Marston,  27  Maine  R.  196  ;  Jones  v.  Brown, 
34.N.  H.  R.  439;  but  they  differ  from  lega- 
cies, in  that  they  do  not  require  the  assent 
of  the  legal  representative  of  the  decedent, 
to  make  a  good  title  in  the  donee;  Doyle, 
Admr.,  v.  Lincoln,  31  Maine  R.  422. 

Negotiable  securities,  which  pass  by  de- 
livery, may  be  the  subject  of  a  gift  in  view 
of  death  ;  Grover  v.  Grover,  24  Pick.  R.  261 ; 
Bradley  v.  Hunt,  Admr.,  5  Gill  &  Johns.  R. 
68 ;  in  which  last  case,  Chief  Justice  Buch- 
anan remarks:  "To  constitute  a  donatio 
causa  mortis,  the  gift  should  be  full  and 
complete  at  the  time,  passing  from  the  donor 
the  legal  power  and  dominion  over  the  thing 
intended  to  be  given,  and  leaving  nothing  to 
be  done  by  him,  or  his  executor,  to  perfect  it. 
Hence,  bank  notes  are  the  subject  of  such 
gifts,  they  being  considered  as  money,  and 
the  property  in  them  passing  by  delivery ; 
and  so,  as  to  promissory  notes  payable  to 
bearer,  which  pass  by  delivery,  and  the  prop- 
erty, and  legal  dominion  over  the  thing  in- 
tended to  be  given,  passing  with  the  posses- 
sion from  the  donor  to  the  donee,  they  do  not 
require  to  be  sued  in  the  name  of  the  execu- 
tor, and  nothing  is  necessary  to  be  done  by 
him  to  perfect  the  gift  of  the  money.     But 


OF   A   WILL.  423 

essential  to  a  will  of  personalty  ;(z<)  and,  at  the  present  day,  tlie 

(«)  Wentworth's  Executors,  3,  4,  14th  ed.  ;  2  Bla.  Com.  503. 


not  so  with  the  delivery  of  a  promissory  note 
payable  to  order,  which  has  been  held  to  be 
insufficient  to  pass  to  the  donee  the  money, 
the  thing  intended  to  be  given;  upon  the 
ground,  that  no  property  in  it  passes  by  de- 
livery ;  and  being  a  mere  chose  in  action,  it 
must,  notwithstanding  the  delivery,  be  sued 
in  the  name  of  the  executor.  So  that  the 
gift  of  money  is  not  complete  at  the  time, 
the  legal  dominion  over  it  remaining  in  the 
donor,  and  on  his  death,  passing  to  his  ex- 
ecutor, without  the  use  of  whose  name  it 
cannot  be  perfected.  This  may  seem  to  be 
technical  ;  but  if  the  rule  is  admitted,  that  a 
delivery  of  the  thing  intended  to  be  given,  is 
essential  to  the  perfection  of  the  gift,  it  must 
follow,  that  a  promissory  note,  payable  to 
order,  is  not  capable  of  being  the  subject  of 
a  donatio  nturtis  causa.  And  if  we  were  at 
liberty  to  do  so,  we  should  not  be  disposed  to 
relax  the  rule,  which  would  be,  to  open  still 
wider  the  door,  already  sufficiently  wide,  to 
frauds,  and  perjuries,  and  the  exercise  of  un- 
due influence,  by  the  artful  and  designing, 
upon  the  weak  and  unwary." 

By  more  recent  decisions,  however,  "It 
seems  now  to  be  well  settled,  that  any  chose 
in  action,  whether  negotiable  or  not,  whether 
simple  contract  or  specialty,  if  it  be  the  con- 
tract, or  promise,  of  some  other  than  the 
donor,  and  do  not  constitute  any  obligation 
upon  the  donor,  may,  by  mere  delivery,  con- 
stitute a  good  gift  by  reason  of  anticipated 
death;"  Meach  v.  Meach  et  al.,  24  Vt.  R. 
291  ;  Brunson  v.  Brunson,  1  Meigs's  R.  630; 
Bonneman,  Admr.,  v.  Sidlinger  et  al.,  21 
Maine  R.  185;  hence,  a  bond  is  the  subject 
of  such  a  gift;  Wells  v.  Tucker,  3  Bin.  R. 
370;  Braitley  v.  Hunt,  Admr.,  5  G.  &  Johns. 
R.  58;  Harris  v.  Clark  et  al.,  Exrs.,  2  Barb. 
6.  R.  94 ;  Miller  v.  JefFre.ss  et  al.,  4  Gratt.  R. 
479;  Waring  v.  Edmonds,  11  Md.  R.  424; 
Caldwell  V.  Renfrew,  33  Vt.  R.  213  ;  and  so, 
of  the  note  of  a  third  person  ;  Bonneman  v. 
Bidlinger  et  al.,  15  Maine  R.  429;  Holly  v. 
Adams,  Admr.,  16  Vt.  R.  20R  ;  Parker  v. 
Marston,  27  Maine  R.  196  ;  Harris  v.  Clark 
et  al.,  Exrs.,  2  Barb.  S.  R.  94  ;  Smith  et  al. 


V.  Kittridge,  Admr.,  21  Vt.  R.  238;  Sessions 
V.  Moseley,  4  Cush.  R  78;  Bates  v.  Kempton, 
7  Gray's  R.  382  ;  Chase  v.  Redding,  13  Id. 
418;  Turpin  v.  Thompson,  2  Met.  (Ky.)  R. 
420  ;  for,  as  was  said  in  the  case  of  Coutant 
V.  Schuyler  et  al.,  1  Paige's  R.  316,  "Not- 
withstanding the  attempts  which  have  been 
made,  in  England,  to  distinguish  between  a 
promissory  note  and  a  bond,  in  relation  to 
the  validity  of  a  gift  of  a  chose  in  action, 
there  cannot,  in  reason,  be  any  difference. 
A  gift  of  either  is  valid,  as  a  symbolical  de- 
livery of  the  debt  due  on  the  note,  or  bond, 
and  all  the  delivery  of  which  the  subject  is 
capable."  And  the  fact,  that  the  note  is 
payable  to  order,  and  unindorsed,  will  not 
alter  the  case;  Harris  v.  Clark  et  al.,  Exrs., 
2  B.arb.  S.  R.  94;  Brown,  Exr.,  v.  Brown  et 
al.,  18  Conn.  R.  410;  in  which  last  case, 
Judge  Hinman  says:  "By  the  modern  Eng- 
lish cases,  bonds,  mortgages,  and  bank  notes, 
are  held  to  be  proper  subjects  of  this  species 
of  donation.  It  has  not,  to  our  knowledge, 
as  yet  been  held,  that  the  notes  of  third  per- 
sons may  be  disposed  of  in  this  way 

Lord  Hardwicke  held,  that  a  bond  might  be 
disposed  of  in  this  way  ;  and  though  he  sub- 
sequently expressed  his  determination  to  stop 
there,  and  attempted  to  distinguish  his  de- 
cision from  the  case  of  receipts  for  South  Sea 
annuities,  and  other  choses  in  action,  yet  his 
reasoning  has  never  been  satisfactory.  He 
said,  that  though  a  bond  was  a  chose  in 
action,  yet  it  was  itself  the  only  evidence  of 
the  debt ;  that  it  could  not  be  sued  without  a 
profert  of  it  in  court ;  the  delivery  of  it, 
therefore,  put  it  in  the  power  of  the  donee, 
by  destroying  it,  to  prevent  the  donor  from 
ever  using  it ;   and  therefore,  some  pioi)erty 

passed  to  the  donee,  by  its  delivery 

It  clearly  does  not  show,  any  real  distinction 
between  bonds  and  other  choses  in  action,  in 
the  particulars  mentioned."  But  that  a  valid 
gift,  in  prospect  of  death,  cannot  be  made  of 
a  certificate  of  stock,  see  Pennington,  A<imr., 
V.  Gitting's  Exr.,  2  G.  A  Johns.  R.  208,  and 
Westerlo  v.  De  Witt,  35  Barb.  R.  215.  It 
has  been  held,  that  a  sealed  note,  will  not 


424 


OF   PERSONAL   ESTATE    GENERALLY. 


usual  and  proper  method  is  to  appoint  an  executor  as  to  tlie  per- 
sonal estate ;  whereas,  under  a  devise  of  lauded  property,  the 


pass  by  delivery  only,  and  without  indorse- 
ment ;  Overton  v.  Sawyer,  7  Jones's  L. 
R.  6. 

It  was  at  one  time  held  tliat  the  decedent's 
own  note,  could  be  made  to  operate  as  a  gift 
by  reason  of  death  ;  Wright  i'.  Wright  et  al., 
1  Cow.  R.  598;  Bowers  v.  Hurd,  Admr.,  10 
Mass.  R.  427  ;  McConnell  v.  McConnell,  11 
Vt.  R.  290;  Jones,  Admr.,  v.  Deyer,  16  Ala. 
R.  221  ;  but  these  eases  were  overruled,  and 
the  opinion  at  present  prevailing,  is  against 
the  validity  of  such  a  gift  ;  Parish  v.  iStone, 
M  Conn.  R.  198  ;  Raymond  v.  Sellick  et  al., 
Admr.,  10  Id.  480;  Craig  v.  Craig,  2  Barb. 
C.  R.  78  ;  Smith  et  al.  v.  Kittridge,  Admr., 
21  Vt.  R.  238.  "A  mere  promise,"  said 
Judge  Hibard  in  the  case  of  Holly  v.  Adams, 
Admr.,  16  Vt.  R.  206,  "to  pay  a  sum  of  money 
is  not  a  donatio  cavsa  mortis,  within  the 
meaning  of  the  law.  .  .  .  This  was  not  a  gift ; 
it  was  merely  &  promise  to  give,  and  required 
the  same  interpositions  of  law  to  make  it 
available,  that  are  required  in  any  case.  .  .  . 
I  am  unable  to  see  any  distinction  in  princi- 
ple, or  indeed  any  reason,  why  a  note  of  a 
third  person,  may  not  as  well  pass  by  a  gift 
causa  mortis,  as  a  horse,  or  a  piece  of  furni- 
ture, or  any  other  species  of  personal  prop- 
erty. .  .  .  The  doctrine  of  the  case  from  10th 
Mass.,  before  alluded  to,  upon  which  the 
plaintiff  has  relied,  is,  that  where  the  maker 
of  a  note  has  acknowledged  that  it  was  given 
for  value,  he  is  not  at  liberty  to  deny  it.  .  .  . 
But  although  that  doctrine  once  obtained 
in  Massachusetts,  it  is  not  law  there  now, 
and  I  am  not  aware  that  it  was  ever  adopted 
in  this  State.  We  think,  therefore  clearly, 
that  this  note  was  but  the  evidence,  which 
the  daughter  held,  that  the  deceased,  in  his 
lifetime,  had  promised  to  give  her  the  sum  of 
money  therein  expressed,  and  to  be  treated 
like  anj'  other  note  which  is  void  for  want  of 
a  consideration."  So,  in  the  case  of  the 
donor's  own  draft,  or  order,  upon  some  third 
person.  Judge  Gridley,  in  Harris  v.  Clark 
et  al.,  Exrs.,  2  Barb.  S.  R.  94,  delivered  an 
opinion  somewhat  analogous  to  the  one  just 
preceding,  as  follows:  "The  question  is, 
whether  the  executory  promise  of  the  donor, 


made  without  consideration,  can  be  made  the 
subject  of  a  gift  causa  mortis.  Such  a  gift 
inter  vivos,  has  been  held  void  for  the  want 
of  a  legal  consideration  to  support  the  prom- 
ise, in  several  adjudged  cases,  in  this  court. 
.  .  .  .  The  gift  was  merely,  of  a  t'o/r/ ^^row/w, 
which  though  subsisting  in  the  form  of  a 
written  security,  was  as  valueless  as  waste 
paper,  and  therefore  incapable  of  being  made 
the  subject  of  a  delivery  or  donation.  .  .  . 
So  far  as  it  represents  a  valid  claim  against 
a  third  person,  we  can  see  no  force  in  the 
direction  that  it  was  not  delivered.  But 
inasmuch  as  it  is  sought  to  be  enforced 
against  the  executors  of  the  donor,  as  repre- 
senting and  creating  a  legal  obligation  upon 
him,  and  available  against  them,  as  the 
representatives  of  the  estate,  it  appears  to 
us  to  be  open  to  the  objections  :  1st,  That 
being  without  consideration,  it  was  a  void 
promise,  incapable  of  being  made  the  subject 
of  a  delivery,  or  a  gift ;  and  2d,  That  the  draft 
being  intended  as  a  voluntary  gift,  rebuts 
the  implication,  which  might  otherwise  arise, 
of  a  guarantee  on  the  part  of  the  drawer,  that 
the  draft  should  be  accepted  and  paid."  And 
see  also,  3  Comst.  R.  93,  and  Craig  v.  Craig, 
3  Barb.  C.  R.  78  ;  Michener  v.  Dale,  23  Pa. 
St.  R.  59  ;  Candor  &  Henderson's  Ap.,  27 
Id.  119  ;  Flint  V.  Pattee,  33  N.  H.  R.  520. 

The  title  to  real  estate  will  not  pass  by  a 
donatio  causa-  mortis ;  Meach  v.  Meach,  et 
al.,  24  Vt.  R.  591  ;  and  in  the  case  of  Ileadley 
V.  Kirby,  18  Pa.  St.  R,  226,  it  was  decided, 
that  a  decedent  cannot  thus  dispose  of  all  his 
property.  Judge  Lowrie  using  the  following 
language  :  "  It  is  not  pretended  that  any 
gift  like  this  has  ever  been  held  good,  and  it 
may  be  safely  declared  that  no  mere  gift 
made  in  prospect  of  death,  and  professing  to 
pass  all  one's  property  to  another,  to  take 
effect  after  death,  can  be  valid  under  our 
statute  of  wills,  no  matter  what  delivery  may 
have  accompanied  it.  If  this  is  not  true, 
then  it  is  plain  that  the  statute  of  wills,  .so  far 
as  it  is  intended  to  exclude  all  modes  of  dis- 
posing of  personal  property  at  death,  which 
it  does  not  provide  for,  is  repealed  by  the  de- 
cisions of  the  courts."    But  subsequently,  in 


OF   A   WILL. 


425 


lands  pass  at  once  to  the  devisee,  and  tlie  intervention  of  an 
executor  is  quite  unnecessary  and  inapplicable.'  The  executor 
of  a  will  of  personal  estate  becomes  entitled,  from  the  moment  of 
the  death  of  the  testator,  to  all  his  personal  property ,(3:)  which 
after  payment  of  the  debts  of  the  deceased  he  is  bound  to  apply 
according  to  the  directions  of  the  will.  Thus  if  the  testator 
should  specifically  bequeath  any  part  of  his  personal  property, 
the  property  so  bequeathed  will  not  belong  absolutely  to  the 
legatee  *until  the  executor  has  assented  to  the  bequest;^  r*S0'^1 
and  this  assent  must  not  be  given  until  the  executor  is 

(x)   Co.  Litt.  388  a ;   Com.  pig.  tit.  Biens  (C)  ;  Williams  on  Executors,  pt.  2,  bk.  2. 


the  case  of  Meach  v.  Meach  et  al.,  24  Vt.  R. 
591,  in  whicb  the  Pennsylvania  case  appears 
to  have  been  fully  examined,  it  was  held, 
that  a  gift  of  all  one's  personal  property  in 
view  of  death  was  valid,  and  in  a  note  to  that 
ease,  the  question  as  to  the  amount  or  value 
of  property,  which  may  pass  by  a  donatio 
mortis  causa,  is  thus  considered:  "I  find 
no  case,  except  the  late  case  in  Pennsylvania, 
where  any  attempt  has  been  made  to  limit 
its  operation,  on  account  of  the  comparative 
or  absolute  extent  of  the  property  disposed 
of.  And  the  more  I  have  reflected  on  the 
subject,  and  compared  the  cases,  with  a  view 
to  evolve  some  rational  and  practicable  prin- 
ciple of  limitation  to  the  extent  of  its  opera- 
tion, the  more  I  have  felt  constrained  to  de- 
clare, that  it  cannot  be  done  by  any  powers 
of  abstraction  or  generalization,  which  my 
short  sight  is  able  to  command."  See  also, 
Michner  v.  Dale,  23  Pa.  St.  R.  59. 

A  delivery  of  »  deed  of  gift,  without  a  de- 
livery of  the  thing  g\ven,  is  not  sufficient  to 
pass  the  title  by  way  of  a  donatio  causa  mor- 
tis ;  Smith,  Admr.,  v.  Doaney,  Admr.,  3  Ired. 
E.  R.  268  ;  and  any  such  deed  of  gift  must 
be  proved  as  a  will;  Grattan,  Admr.,  v.  Ap- 
jjleton  et  al.,  3  Story's  R.  755  ;  Miller  v.  Jef- 
fress  et  al.,  4  Gratt.  R.  479.  But  see  Exrs. 
of  Blake  v.  Low,  3  Desaus.  R.  266  ;  _Brinker- 
hoff  u.  Lawrence,  Admr.,  Ac,  2  Sandf.  C.  R. 
400;  Meach  v.  Meach  et  al.,  24  Vt.  R.  291. 

A  donatio  causa  mortis  may  be  upon  a 
condition,  other  than  those  which  are  implied 
from  the  very  nature  of  .such  a  gift  ;  Currie 
V.  Steele  et  al.,  2  Sandf  S.  R.  512. 

1  The  testamentary  disposition  of  property, 


without  the  appointment  of-an  executor,  is, 
in  technical  language,  denominated  a  codicil ; 
for,  "a  codicil  is  a  just  sentence  of  our  will, 
touching  that  which  any  would  have  done 
after  their  death,  without  the  appointing  of 
an  executor.  Which  definition  doth  agree, 
almost  word  for  word,  with  the  definition  of 
a  testament;  saving  that  some  words  are 
here  expressed,  which  are  there  omitted, 
absque  executoris  constitutioue,  without  the 
appointment  of  an  executor.  By  force  of 
which  words,  the  codicil  is  made  to  differ 
from  a  testament ;  for  a  testament  can  no 
more  consist  or  be  without  an  executor,  than 

a  codicil  can  admit  an  executor 

Whereupon,  the  writers,  conferring  a  testa- 
ment and  a  codicil  together,  and  perceiving 
the  odds  betwixt  the  one  and  the  other,  they 
call  a  testament  a  great  will,  and  a  codicil  a 
little  will.  And  do  compare  the  testament  to 
a  ship,  and  the  codicil  to  a  boat,  tied  most 
commonly  to  the  ship.  And  not  unjustly,  as 
well  because  the  codicil  is  not  able  to  sustain 
the  heavy  burden  of  an  executor,  who,  rep- 
resenting the  person  of  the  testator,  doth,  as 
it  were  {\\ke  Atlas,  who  is  feigned  to  carry 
the  world  on  his  shoulders) ,  bear  upon  his 
back  the  whole  mass  and  weight  of  all  the 
goods  and  chattels,  which  did  belong  to  the 
deceased,  and  on  whose  neck  are  laid  all  the 
actions,  which  either  might  be  intended 
against  the  testator,  by  others,  or  against 
others,  by  the  testator,"  &c.  ;  Swineburne  on 
Wills,  vol.  1,  part  1,  sec.  v,  pp.  28,  29. 

'•^  A  legatee's  title  i.s  not  perfect,  until  the 
executor  has  assented  to  his  legacy  ;  Moore 
V.  Barry,  1  Bail.  R.  504  ;  Lenoir  f.  Sylvester, 


426 


OF   PERSONAL   ESTATE   GENERALLY. 


satisfied  that  there  is  sufficient  to  pay  the  debts  of  the  deceased 
without  having  recourse  to  the  property  so  specifically  given. (^) 

(y)  Toller's  Executors,  bk.  3,  s.  2 ;  Williams  on  Executors,  pt.  3,  bk.  3,  cb.  4,  s.  3. 


Id.  604;  Upcbureh  v.  Norsworthy,  12  Ala. 
R.  532  ;  Kelly's  Admr.  v.  Kelly's  Distrib- 
utees. 9  Id.  908  ;  Rea  v.  Rbodes,  5  Ired.  E. 
R.  148  ;  Johnson  v.  The  Conn.  Bank,  21  Conn. 
R.  156  ;  Saggs  v.  Sapp,  20  Geo.  R.  100  ;  and 
this  is  true  of  every  kind  of  bequest ;  as  well 
of  specific  ;  Moore  v.  B:irry,  1  Bail.  R.  504  ; 
Lenoir  w.  Sylvester,  Id.  604,  Smith  v.  Towne's 
Admr.,  4  Munf.  R.  191  ;  Lillard  v.  Reynolds, 
3  Ired.  R.  370  ;  Everitt  v.  Lane,  2  Ired.  E. 
R.  550  ;  Frouty  v.  Frouty,  1  Bail.  C.  R.  617  ; 
Lark  et  al.  v.  Linstead  et  al.,  2  Md.  C.  Decs. 
162;  Crist  V.  Crist,  Admr.,  1  Cart.  R.  570; 
as  of  general ;  Wilson  v.  Rine,  1  Har.  & 
Johns.  R.  138  ;  Lark  et  al.  v.  Linstead  et  al., 
2  Md.  C.  Decs.  162  ;  Crist  v.  Crist,  Admr.,  1 
Cart.  R.  570.  And  the  assent  of  the  legatee 
is  equally  necessary ;  Johnson  v.  The  Con- 
necticut Bank,  21  Conn.  R.  156. 

But  "  a  very  slight  assent,"  on  the  part  of 
the  executor,  "  is  held  sufficient ;  and  it  may 
be  either  express  or  implied,  absolute  or  con- 
ditional. He  may  not  only,  in  direct  terms, 
authorize  the  legatee  to  take  possession,  but 
his  assent  may  be  inferred,  either  from  direct 
expressions,  or  particular  acts,  and  such  con- 
structive permission  will  be  equally  availa- 
ble. His  assent  may  be  implied  ;  as,  if  the 
executor  congratulate  the  legatee,"  &c.,  &c.  ; 
Lynch  v.  Thomas,  3  Leigh's  R.  686  ;  Lillard 
V.  Reynolds,  3  Ired.  R.  370  ;  Hearne  v.  Ke- 
van  et  al.,  2  Ired.  E.  R  34  ;  Chester  et  al.  v. 
Greer  et  al.,  5  Hump.  R.  26  ;  Hudson,  Exr., 
&c.,  V.  Reeve,  1  Barb.  S.  R.  89;  Rea  v. 
Rhodes,  5  Ired.  E.  R.  148;  Cox  v.  McKin- 
ney,  32  Ala.  R.  461 ;  Edney  v.  Bry.?on,  2 
Jones's  L.  R.  365  ;  and  he  may  by  implica- 
tion assent  to  a  legacy  to  himself;  Hearne  v. 
Kevan  et  al.,  2  Ired.  E.  R.  34 ;  Hudson, 
Exr.,  ic,  V  Reeve,  1  Barb.  S.  R.  89  ;  Walk- 
er V.  Walker,  26  Ala.  R.  262.  In  accordance 
with  these  principles,  it  has  been  held,  that 
the  mere  acquie.«cence  of  the  executor,  with- 
out any  formal  consent,  is  sufficient,  where 
the  subject-matter  of  the  legacy,  is  in  the 
hands  of  the  legatee,  at  the  death  of  the 
testator  ;  Andrews,  Exrx.,  v.  Hunneman  et 
al.,   6  Pick.   R.  126  ;  Lowry  v.  Mountjoy,   6 


Call's  R.  55  ;  Finch  et  al.  v.  Rogers,  11 
Hump.  R.  583  ;  in  which  it  was  said,  that, 
"  In  such  case,  the  legatee  being  actually  in 
possession,  and  that,  too,  by  the  act  of  the 
testator,  in  his  lifetime,  the  reason  of  the 
rule,  which  requires  the  executor's  assent, 
does  not  seem  to  apply.  The  executor,  in 
the  case  stated,  would  not  be  chargeable  with 
such  chattel  ;  it  would  not  be  assets  in  his 
hands;  nor  could  he  maintain  any  action 
against  the  legatee  for  its  recovery,  except  in 
the  event  of  a  deficiency  of  assets,  to  dis- 
charge the  debts  of  the  estate,  after  having 
fully  administered  the  residue  of  his  personal 
estate."  So,  too,  the  assent  of  the  executor 
to  a  specific  legacy,  will  be  presumed,  after 
possession  by  the  legatee,  for  a  considerable 
time  ;  Alexander  v.  Williams,  2  Hill's  (S.  C.) 
R.  522;  White  v.  White,  4  Dev.  R.  257; 
Merritt  v.  Windley,  3  Id.  399  ;  White  v. 
White,  4  Dev.  &  Bat.  R.  401  ;  Birney  v. 
Richardson,  5  Dana's  R.  424  ;  Squires  v.  Old, 
7  Hump.  R.  454  ;  Rea  v.  Rhodes,  5  Ired.  E. 
R.  148;  Jordan  v.  Thornton  et  al.,  7  Geo.  R. 
517  ;  Lott  V.  Meacham,  4  Fla.  R.  144  ;  Finch 
et  al.  V.  Rogers,  11  Hump.  R.  563;  Gums  v. 
Capehart,  5  Jones's  Eq.  R.  242;  and  an  as- 
sent to  a  legacy  for  life,  is  effectual  as  to  the 
subsequent  interest  bequeathed  by  the  will ; 
Conner  w.  Satchwell,  Admr.,  4  Dev.  &  Bat.  L. 
R.  76;  Ingram  v.  Terry  et  al.,  2  Hawk's  R. 
122;  Hearne  v.  Kevan  et  al.,  2  Ired.  E.  R. 
34;  Acheson  et  al.  v.  MeCombs  et  al.,  3  Id. 
554  ;  Rea  v.  Rhodes,  6  Ired.  E.  R.  148  ;  Jor- 
dan V.  Thornton  et  al.,  7  Geo.  R.  517;  Lott 
V.  Meacham,  4  Fla.  R.  144  ;  Finch  et  al.  v. 
Rogers,  11  Hump.  R.  563  ;  Judge  of  Probate 
V.  Alexander,  31  Miss.  R.  297 ;  Parker  v. 
Chambers,  24  Geo.  R.  518:  Thrasher  v.  In- 
graham,  32  Ala.  R.  645  ;  Gay  v.  Gay,  29  Geo. 
R.  549. 

The  executor  may  give  his  consent,  within 
the  time  allowed  by  law  for  the  payment  of 
debts  ;  Thompson  v.  Schmidt,  3  Hill's  (S.  C.) 
R.  156  ;  and  after  that  assent,  a  creditor  of 
the  testator,  can  no  longer  pursue  the  prop- 
erty in  the  hands  of  the  legatee,  through  a 
judgment  and  execution  against  the  execu- 


OF   A   WILL. 


427 


If  the  testator  should  appoint  as  his  sole  executor  an  iufant 
under  the  age  of  twenty-one  years,  such -infant  will  not  be 
allowed  to  exercise  his  office  during  his  minority;  but  during 
this  time  the  administration  of  the  goods  of  the  deceased  will  be 
granted  to  the  guardian  of  the  infant,  or  to  such  other  person  as 
the  Court  of  Probate  may  think  tit.(z)  Such  person  is  called 
an  administrator  durante  minore  a:iate.{ay     If  a  married  woman 

(«)   Stat.  38  Geo.  Ill,  c.  87,  s.  6. 

(a)  WilHanis  on  Executors,  pt.  1,  bk.  5,  ch.  3,  s.  3. 


tor  ;  but  he  may  still  follow  the  specific  lega- 
cies, by  making  all  the  legatees  parties  to  a 
bill  in  equity  ;  Burnley  v.  Lambert,  1  Wash. 
R.  399 ;  Alexander  v.  Williams,  2  Hill's 
(S.  C.)  R.  522  ;  Lyon  v.  Vick  et  al.,  6  Yerg. 
R.  42;  Nunn  v.  Owens,  2  Strobh.  R.  10  i  ; 
Buchanan  v.  Pue,  Jr.,  Exr.,  6  Gill's  R.  112; 
and  where  an  assent  has  once  been  given, 
an  executor  cannot,  in  general,  follow  the 
property  in  the  hands  of  the  legatee,  even 
though  there  should  be  a  deficiency  of  assets 
to  pay  debts,  unless  he  has  taken  a  refunding 
bond,  and  even  then,  in  the  case  of  a  specific 
legacy,  he  cannot  recover  the  thing,  but 
merely  the  value  ;  Ross  v.  Davis,  17  Ark.  R. 
113  ;  but  it  has  been  held,  that  where  the  as- 
sent was  given  upon  condition  that  a  refund- 
ing bond  should  be  delivered,  and  that  con- 
dition was  not  complied  with,  the  adminis- 
trator might  recover  from  the  distributee  ; 
Howell  V.  Johnston,  4  Jones's  L.  R.  502. 

Where  an  executor  is  refractory,  and  re- 
fuses to  confirm  the  title  of  a  legatee,  a  court 
of  equity  will  compel  him  ;  Lark  et  al.  v. 
Linstead  et  al  ,  2  Md.  C.  Decs.  162  ;  Hucka- 
bee,  Admr.,  v.  Swoope,  20  Ala.  R.'491  ;  Crist 
V.  Crist,  Admr.,  1  Cart.  R.  570  ;  Vaughan  v. 
Vaughan,  30  Ala.  R.  329. 

The  opinion  of  Judge  Nelson  in  the  case  of 
McClanahan,  Admr.,  v.  Davis  et  al.,  8  How. 
R.  178,  may  be  here  quoted,  as  containing  a 
summary  of  the  law  on  this  subject:  "The 
legatee,  whether  general  or  specific,  or  whether 
of  chattels  real  or  personal,  must  first  obtain 
the  executor's  assent  to  the  legacy,  before  his 
title  can  become  perfect.  He  has  no  authority 
to  take  posses.sion  of  the  legacy  without  such 
assent,  although  the  testator  by  the  will  ex- 
pre.S8ly  direct  that  he  shall  do  so But 


the  law  has  prescribed  no  particular  form  by 
which  the  assent  of  the  executor  shall  be 
given,  and  it  may  be,  therefore,  either  ex- 
press or  implied.  It  may  be  inferred  from 
indirect  expre.^sions,  or  particular  acts  ;  and 
such  constructive  permission  shall  be  equally 
available.  An  assent  to  the  interest  of  tenant 
for  life  of  a  chattel,  will  inure  to  vest  the  in- 
terest of  the  remainder,  and  e  converso,  as 
both  constitute  but  one  estate.  So  an  assent 
to  a  bequest  of  a  lease  for  years,  carries  with 
it  an  assent  to  a  condition  or  contingency  an- 
nexed to  it ;  and  it  may  be  implied,  from  the 
possession  of  the  subject  bequeathed,  by  the 
legatee,  for  any  considerable  length  of  time." 

'  By  the  23d  section  of  an  act  of  the  legis- 
lature of  Pennsylvania,  of  the  15th  of  March, 
1832,  it  is  enacted,  that  "Whenever  all  the 
executors  named  in  any  last  will  and  testa- 
ment, or  all  the  persons  entitled,  as  kindred, 
to  the  administration  of  any  decedent's  es- 
tate, shall  happen  to  be  under  the  age  of 
twenty-one  years,  it  shall  be  lawful  for  the 
register  to  grant  administration  ....  to 
any  other  fit  person  or  persons,  subject  never- 
theless to  be  terminated,  at  the  instance  of 
any  of  the  said  minors,  who  shall  have  arrived 
at  the  full  age  of  twenty-one  years."  Purd. 
Dig.  (18()1),  p.  277,  sec.  29. 

A  similar  provision  is  in  force  in  Massachu- 
setts :  "  When  a  person  appointed  executor  is 
under  the  age  of  twenty-one  years,  at  the 
time  of  proving  the  will,  administration  may 
be  granted  with  the  will  annexed,  during  his 
minority,  unless  there  be  another  executor 
who  shall  accept  the  trust,  in  which  case,  the 
estate  shall  be  administeretl  by  such  other 
executor,  until  the  minor  shall  arrive  at  full 
age,  when  he  may  be  admitted  as  joint  execu- 


428  OF  PERSONAL  ESTATE  GENERALLY. 

should  be  appointed  an  executrix,  she  cannot  accept  the  office 
without  the  consent  of  her  husband,(6)  and  having  accepted  it 
with  his  consent,  she  is  unable,  without  his  concurrence,  to  per- 
form any  act  of  administration  which  may  be  to  his  prejudice; 
whilst  he,  on  the  other  hand,  may  release  debts  due  to  the  de- 
ceased, or  make  assignment  of  the  deceased's  personal  estate, 
without  his  wife's  concurrence ;(c)  for  as  the  general  rule  of  law 
is  that  a  husband  and  wife  are  but  one  person,  the  power,  and 
with  it  the  responsibility,  are  vested  in  the  husband.  !N"everthe- 
less  a  married  woman,  being  an  executrix,  may  make  a  will 
without  the  consent  of  her  husband,  confined  to  the  personal 
estate  of  which  she  is  executrix  ;(c?)  and  the  executor  of  her  will 
so  made  will  be  the  executor  of  the  original  testator.  For  it  is 
a  general  rule,  that  if  any  executor  should  die  before  having  com- 
pletely administered  the  estate  of  his  testator,  the  executor  ap- 
pointed  *by  the  will  of  such  executor  will  be  entitled  to 
'-  -'  complete  the  distribution  of  the  estate  of  the  former 
testator,  (e)' 

(i)  Williams  on  Executors,  pt.  1,  bk.  3,  ch.  1. 

(f)   Ibid.  pt.  3,  bk.  1,  ch.  4;  5  Rep.  27  b.  (e)  2  Bla.  Com.  506. 

(d)  Ibid.  pt.  1,  bk.  2,  ch.  1,  s.  2. 

tor  with  the  former,  upon  giving  bond  as  be-  Thus,  in  New  York,  "No  executor  of  an  ex- 
fore  provided."  Gen.  Stats,  of  Mass.  (1860),  ecutor,  shall,  as  such,  be  authorized  to  admin- 
p.  482,  sec.  7.  ister  on  the  estate  of  the  first  testator  ;  but, 

In  the  State  of  New  York  it  is  provided,  on  the  death  of  the  sole  or  surviving  executor 

that  "  If  any  person,  who  would  otherwise  be  of  any  last  will,    letters   of  administration, 

entitled  to  letters  of  administration,  as  next  with  the  will  annexed,   of  the  assets  of  the 

of  kin,   or  to  letters  of  administration  with  first  testator  left  unadministered,  shall  be  is- 

the  will  annexed,  as  residuary  or  specific  leg-  sued,"  &c.     Rev.  Stats,  of  N.  Y.   (6th  ed.), 

atee,  shall  be  a  minor,  such  letters  shall  be  vol.  iii,  p.   156,   sec.   17.     In  Massachusetts, 

granted  to  his  guardian,  being  in  all  respects  "The  executor  of  an  executor  shall  not,  as 

competent,  in  preference  to  creditors  or  other  such,   administer  the  estate  of  the  first  tes- 

persons."    Rev.    Stats,    of  N.  Y.    (5th  ed.),  tator  "      Rev.    Stats,    of    Mass.    (1860),    p. 

vol.  iii,  p.  160,  sec.  3.3.  482,  sec.  9.     In  Pennsylvania,  "Whenever  a 

And  see  also,  N.  II.  Compil.  Stats.  (185.S),  sole  executor,  or  the  survivor  of  several  ex- 
p.  404,  sec.  6  ;  Thomps.  Dig.  of  the  Ls.  of  ecutors,  shall  die,  leaving  goods  or  estate  of 
Fla.,  p.  196,  sec.  2;  Rev.  Stats,  of  Vt.  (1839),  his  testator  unadministered,  the  register  hav- 
pp.  260,  261,  sec.  6  ;  Rev.  Stats,  of  Me.  ing  jurisdiction,  shall,  notwithstanding  such 
(1857),  pp.  411,  412,  sec.  15  ;  Ls.  of  Del.,  executor  may  have  made  his  last  will  and 
Rev.  Code  of  1852,  p.  297,  sec.  7  ;  1  Rev.  testament,  and  appointed  an  executor  or  ex- 
Stats,  of  0.  (1860),  p.  568,  sec.  8;  Stats,  of  ecutors  thereof,  grant  letters  of  administra- 
Min.,  p.  432,  sec.  6.  tion  of  all  such  goods  and  estate,  in  the  same 

1  The   statute   law   in   the  United   States,  manner  as  if  such  executor  had  died  without 

generally,  is,  that  an  executor  of  an  executor,  having  made  any  testament  or  last  will ;  and 

cannot  be  the  executor  of  the  first  testator,  the  executor  of  such  deceased  executor,  shall 


OF    A   WILL. 


429 


The  testator,  however,  may  and  usually  does  appoint  more 
than  one  person  his  executors.  In  this  case  the  law  regards  all 
the  co-executors  as  one  individual  person;  and  consequently  any 
one  of  the  executors  of  full  age  may,  during  the  life  of  his  com- 
panions, perform,  without  their  concurrence,  all  the  ordinary 
acts  of  administration,  such  as  giving  receipts,  making  payments, 
and  selling  and  assigning  the  property.(/)  But  all  the  executors, 
infants  included,  must  join  in  bringing  actions  respecting  the 
estate.(^)  If,  therefore,  the  testator  appoint  a  person  indebted  to 
him  as  his  executor,  or  one  of  his  executors,  this  appointment 
will  operate  at  law  as  a  release  of  the  debt.(Ay     For  the  debt  is  a 


{/)  Shep.  Touch.  484. 

(g)  Williams  on  Executors,  pt.  3,  bk.  1,  ch.  2.  An  ejectment  was  an  exception,  as  any 
one  executor  might  demise  the  entirety  of  the  testator's  leasehold  land  j  Doe  d.  Stace  v. 
Wheeler,  15  Mee.  &  Wels.  623.     But  see,  now,  stat.  15  &  16  Vict.  c.  76,  ss.  168  et  seq. 

(k)  Wentworth's  Executors,  73,  14th  ed.  ;  Freakley  v.  Fox,  9  B.  &  Cress.  130,  E.  C.  L. 
R.  vol.  17. 


in  no  case  be  deemed  executor  of  the  first 
testator."  Purd.  Dig.  (1861),  p.  275,  sec.  16. 
And  see,  N.  H.  Compil.  Stats.  (185.3),  p.  405, 
sec.  8;  2  Matthews'?  Dig.  (1857),  p.  558,  sec. 
8;  Rev.  Stats,  of  Vt.  (1839),  p.  262,  sec.  12; 
Ls.  of  Del.,  Rev.  Code  of  1852,  p.  297,  sec. 
10  ;  2  Compil.  Ls.  of  Michigan,  p.  874,  sec. 
12;  Rev.  Stats,  of  Maine  (1857),  p.  412, 
sec.  18;  1  Rev.  Stats,  of  0.  (1860),  p.  568, 
860.  10  :  2  Rev.'Stats.  of  Ky.  (1860),  p.  499, 
sec.  11. 

But  in  New  Jersey,  it  is  provided,  that 
"All  and  every  the  executors  and  adminis- 
trators of  any  person  or  persons,  who,  as  ex- 
ecutor or  executors,  either  of  right,  or  in  his, 
her,  or  their  own  wrong,  or  as  administrator 
or  administrators,  hath  or  have  wasted  or 
converted,  or  hereafter  shall  waste  or  convert, 
any  goods,  chattels,  estate,  or  assets,  of  any 
person  deceased,  to  his,  her,  or  their  own  use, 
shall  be  liable  and  chargeable,  in  the  same 
manner,  as  his,  her,  or  tlieir  testator  or  intes- 
tate would  have  been,  if  living;"  and  that 
"executors  of  executors  shall  have  actions  of 
debt,  account,  and  of  goods  carried  away,  of 
the  first  testator,  and  execution  of  judgments 
obtained  by,  or  recognizances  made  to  the 
first  testator,  in  any  court  of  record,  in  the 
same  manner  as  the  first  testator  should  have 
had  if  he  were  in  life,  as  well  of  actions  of  the 


time  past,  as  of  the  time  to  come  ;  and  the 
same  executors  of  executors,  shall  answer  to 
others,  of  as  much  as  they  have  recovered  of 
the  goods  of  the  first  testator,  as  the  first  ex- 
ecutors should  do  if  they  were  in  life."  And 
similar  provisions  are  in  force  in  North  and 
South  Carolina;  Rev.  Stats,  of  S.  C,  vol. 
ii,  p.  439  ;  Nixon's  Dig.  (N.  J.),  1861,  p.  276, 
sees.  3  and  4;  Code  of  N.  C.  (1855),  p.  290, 
sees.  42  and  43. 

1  The  statutes  of  many  of  the  States  of  the 
Union,  establish  a  rule  contrary  to  that  stated 
in  the  text.  Thus,  by  the  laws  of  Florida, 
"  If  any  person  shall  appoint  his  or  her  debtor, 
to  be  the  executor  of  his  or  her  last  will  and 
testament,  such  appointment  shall  not,  either 
in  law  or  equity,  be  construed  to  operate  as  a 
release  or  extinguishment,  of  any  debt  due  to 
the  testator,  unless  the  same  be  so  expressly 
declared  in  said  last  will  and  testament." 
Thomps.  Dig.  of  the  Ls.  of  Fla.,  p.  196,  sec. 
1,  ch.  7.  And  so,  also,  in  Texas,  "The  nam- 
ing an  executor,  shall  not  operate  to  extinguish 
any  just  claim  which  the  deceased  had  against 
him  ;  and  in  all  cases,  when  an  executor  or 
administrator  may  be  indebted  to  his  testator 
or  intestate,  he  shall  account  for  the  debt  in 
the  same  manner  as  if  it  were  so  much  money 
in  his  hands;  provided,  however,  that  if  said 
debt  was  not  due  at  the  time  of  receiving  let- 


430  OF   PERSONAL   ESTATE   GENERALLY. 

chose  in  action,  and  a  man  cannot  either  solely  or  conjointly 
with  others  bring  an  action  against  himself.  In  equity,  how- 
ever, an  executor  who  was  indebted  to  the  testator  is  bound  to 
account  for  his  debt  to  the  estate  of  the  testator.(z)  On  the 
decease  of  any  co-executor,  the  office  survives  to  those  who 
remain;  and  until  recently  if  one  of  them  should  have  renounced 
the  executorship  in  the  lifetime  of  his  companions,  he  might  at 
any  time  have  changed  his  mind  and  undertaken  the  office.  But 
if,  having  survived  all  his  companions,  he  should  then  have 
renounced,(A;)  or  if,  without  such  renunciation,  administration 
^     ^  ,^  *should  then  have  been  granted  to  another  person,(0  he 

r*3041  r  7v  / 

^  -"  could  not  afterwards  have  interfered.  It  is,  however,  now 
provided  by  the  recent  Court  of  Probate  Act,  1857,  that  where 
any  person  after  the  commencement  of  that  act  (which  was  fixed 
by  Order  in  Council  for  the  11th  of  January,  1858),  renounces 
probate  of  the  will  of  which  he  is  appointed  executor  or  one  of 
the  executors,  the  rights  of  such  person  in  respect  of  the  execu- 
torship shall  wholly  cease;  and  the  representation  to  the  testator 
and  the  administration  of  his  elfects  shall,  without  any  further 

(?)  Bac.  Ab.  tit.  Executors  and  Administrators  (A),  10  ;  Simmons  v.  Gutteridge,  13  Ves. 
264. 

(it)  Hensloe's  Case,  9  Rep.  36  ;  Creswick  v.  Woodhead,  4  Man.  &  Gran.  811,  B.  C.  L.  R. 
vol.  43. 

{I)  Venables  v.  East  India  Company,  2  Ex.  Rep.  633. 


ters,  he  shall  only  be  required  to  account  for  tor  bath  appointed,  or  shall  appoint,  his  judg- 
it,  from  the  date  when  it  shall  become  due."  ment  debtor  his  executor,  and  the  said  judg- 
Old.  &  White's  Dig.  Ls.  of  Tex.  (1859),  p.  ment  is  a  lien  on  the  real  estate  of  such 
176,  art.  749.  See  also,  New  Dig.  of  the  Ls.  executor,  and  the  same  is  bequeathed  specifi- 
of  Geo.,  by  T.  R.  R.  Cobb  (1851),  vol.  i,  pp.  cally  to  a  legatee,  or  generally  in  the  residu- 
302,  303,  sec.  51 ;  Rev.  Code  of  N.  C.  (1855),  ary  clause  of  such  testator's  will,  or  where 
p.  288,  see.  31 ;  2  Rev.  Stats,  of  Ky.  (1860),  any  testator,  having  a  judgment  situated  as 
p.  499.  sec.  10;  2  Matthews's  Dig.  Va.  (1857),  aforesaid,  shall  have  creditors  interested  in 
p.  561,  sec.  13;  Nixon's  Dig.  N.  J.  (1861),  p.  preserving  the  lien  of  such  judgment,  such 
280,  sec.  24;  2  Stats.  111.  (1858),  p.  1184,  sec.  legatee  or  creditor  so  interested  in  such  judg- 
12;  Stats,  of  S.  C,  vol.  v,  p.  Ill,  sec.  25  ;  ment,  may  suggest  their  interest  in  the  same 
Ls.  of  Del.,  Rev.  Code  of  1852,  p.  301,  sec.  upon  the  record  thereof,  and  issue  a  writ  of 
18;  Dig.  of  Stats,  of  Ark.,  p.  126,  sec.  82;  scire  facias  agn'iDst  the  defendant,  to  revive 
1  Rev.  Stats,  of  0.  (1860),  p.  578,  sec.  65;  the  same,  and  continue  the  lien  thereof,  at 
How.  &  Hutch.  Stat.  Ls.  of  Missi.,  p.  404,  any  time  when  such  proceedings  shall  be 
sec.  67.  necessary  under  the  laws  of  this  common- 
By  the  2d  section  of  an  act  of  the  legislature  wealth,  which  judgment  so  revived,  shall  re- 
ef Pennsylvania,  of  the  3d  of  April,  1829,  it  main  for  the  use  of  all  persons  interested 
is  provided,  that  "  In  all  cases  where  a  credi-  therein."     Purd.  Dig.  (1861),  p.  285,  sec.  84. 


OF   A   WILL.  431 

renunciation,  go,  devolve,  and  be  committed  in  like  manner,  as  if 
such  person  had  not  been  appointed  executor.^?/?)  And  by  a 
subsequent  act  the  same  effect  is  produced  whenever  an  executor 
named  in  a  will  survives  the  testator,  but  dies  without  having 
taken  probate,  and  whenever  an  executor  named  in  a  will  is 
cited  to  take  probate  and  does  not  appear  to  such  citation. (rz) 
When  two  or  more  executors  prove,  the  executor  of  the  will  of 
the  survivor  of  them  will,  after  the  decease  of  all  of  them,  be 
entitled  to  act  as  executor  of  their  testator.* 

If  any  person  not  duly  authorized  should  intermeddle  with  the 
goods  of  the  testator,  or  do  any  other  act  relating  to  the  office  of 
executor,  he  thereby  becomes  an  executor  of  his  own  wrong,  or, 
as  it  is  called  in  law  French,  an  executor  de  son  tort.  Such  an 
executor  is  liable  to  the  same  demands  from  the  creditors  of  the 
deceased  as  if  he  had  been  regularly  appointed;  but  like  a  regu- 
lar executor  he  is  not  liable  beyond  the  amount  of  the  assets  of 
the  testator  which  have  come  to  his  hands.  The  chief  difference 
between  such  an  executor  and  one  who  has  been  duly  appointed 
is  this,  that  an  executor  de  son  tori  is  not  allowed  to  derive  any 
benefit  from  his  *own  wrongful  intermeddling;  whereas  p^oAr-, 
a  regularly  appointed  executor,  if  a  creditor  of  the  de-  '-  -' 
ceased,  may  lawfully  retain  his  own  debt  out  of  the  assets  in 
preference  to  all  other  debts  of  the  same  degree. (o) 

The  most  striking  difference  between  a  will  of  personal  estate 
and  a  will  of  lands  yet  remains  to  be  noticed.  A  will  of  lands 
has  always  operated  and  still  operates  as  a  mode  of  conveyance 
requiring  no  extrinsic  sanction  to  render  it  available  as  a  docu- 
ment of  title.  But  a  will  of  personal  estate  has  always  required 
to  be  proved.  This  probate  of  the  will  was  until  recently  re- 
quired to  be  made  in  some  ecclesiastical  court.  But  by  the  Court 
of  Probate  Act,  1857,(2?)  the  jurisdiction  of  all  the  ecclesiastical 
courts  over  wills  was  entirely  abolished,  and  a  court  was  estab- 

(ot)  Stat.  20  &  21  Vict.  c.  77,  s.  79. 

(w)   Court  of  Probate  Act,  1858,  21  &  22  Vict.  c.  95,  s.  16. 

(o)  Williams  on  Executors,  pt.  1,  bk.  3,  ch.  5  ;  pt.  3,  bk.  2,  ch.  2,  s.  6. 

(p)  Stat.  20  &  21  Vict.  c.  77,  amended  by  stat.  21  &  22  Vict.  c.  95. 

'  See  atite,  p.  303,  note. 


432 


OF    TERSONAL   ESTATE   GENERALLY. 


lishcd  called  the  Court  of  Probate,  with  a  prhicipal  registry  in 
London  and  district  registries  throughout  the  kingdom,  in  which 
all  wills  of  personal  estate  are  now  required  to  be  proved.  In 
this  court  the  will  itself  is  deposited,  and  a  copy  of  the  will, 
which  is  given  by  the  court  to  the  executor  on  proving,  denomi- 
nated the  probate  copy,  is  the  only  proper  evidence  of  the  right 
of  the  executor  to  intermeddle  with  the  personal  estate  of  his  tes- 
tator.(g)^     Before  probate,  however,  the  executor  may  perform  all 

(q)  Eex  V.  Netherseal,  4  T.  R.  2G0  ;  Wms.  Ex.  pt.  1,  bk.  4,  ch.  1. 


'  For  the  regulations  adopted  by  the  several 
States  of  the  Union,  on  the  subject  of  the 
Probate  of  Wills,  see  Revis.  Stats,  of  N.  Y. 
(5th  ed.),  vol.  iii,  pp.  1.38,  &c.  ;  N.  H.  Com- 
piled Stats.  (1853),  p.  402,  sec.  1;  Thomps. 
Dig.  of  the  Ls.  of  Fla.,  p.  19.S,  sec.  3  ;  New 
Dig.  of  the  Ls.  of  Geo.  (1851),  pp.  281  to 
287  ;  Revis.  Stats,  of  Vt.  (1839),  pp.  248  to 
253;  2  Revis.  Stats,  of  0.  (1860),  pp.  1212, 
&(i.  ;  Revis.  Stats.  Mass.  (1860),  pp.  574, 
&c.  ;  Purd.  Dig.  Pa.  (1861),  pp.  273,  &c.  ; 
Old  &  White's  Dig.  Ls.  of  Tex.  (1859),  pp. 
162,  &c.  ;  2  Matthews's  Dig.  Va.  (1857),  pp. 
879,  &c.;  2  Compiled  Ls.  Michigan  (1867), 
pp.  866,  &c.  ;  Code  of  Ala.  (1852),  pp.  330, 
Ac.  ;  1  Md.  Code  (1860),  pp.  688,  &c.  ;  Revis. 
Stats.  Maine  (1857),  pp.  408,  &c.  ;  Nixon's 
Dig.  N.  J.  (1861),  pp.  579,  &o.  ;  Revis.  Code 
of  N.  C.  (1855)  pp.  606,  &c.  ;  Revis.  Stats. 
ofR.  I.  (1857),  pp.  359,  &c.  ;  Stats,  of  S.  C, 
vol.  6,  p.  209  ;  Caruthers  &  Nicholson's 
Stat.  Ls.  of  Tenn.,  pp.  713,  &c.  ;  Ls.  of  Dela., 
Revis.  Code  of  1852,  p.  296,  Ac.  ;  Dig.  of  the 
Stats,  of  Ark.,  p.  991,  &c. 

As  to  the  operation  and  effect  of  the  pro- 
bate of  a  will,  a  distinction  is  to  be  made  be- 
tween personal  and  real  property.  The  pro- 
bate of  a  will  of  personalty,  is  conclusive  evi- 
dence, while  it  remains  unrevoked,  throughout 
the  Union,  as  will  be  seen  by  the  following 
cases.  But  as  regards  realty,  the  decisions 
are  not  uniform  ;  some  holding,  that  the  pro- 
bate is  of  equal  effect  with  that  of  personal 
property,  while  others  support  the  English,  or 
common  law  doctrine  ;  the  former  is  acknowl- 
edged as  the  law  of  Rhode  Island,  Alabama, 
Maine,  Massachusetts,  New  Hampshire,  Con- 
necticut, Ohio,  California,  and  Kentucky ; 
Potter   V.  Webb  et  al.,  2  Greenlf.  R.  257; 


Small  et  al.  v.  Small,  4  Id.  224;  Osgood  v. 
Breed,  12  Mass.  R.  533  ;  Inhabitants  of  Dub- 
lin V.  Chadbourne,  16  Id.  433  ;  Laughton  v. 
Atkins,  1  Pick.  R.  549  ;  Tompkins  v.  Tomp-' 
kins,  1  Story's  R.  547;  Poplin  v.  Hawke,  8 
N.  H.  R.  124  ;  Judson  v.  Lake,  3  Day's  R. 
318  ;  Bush  V.  Sheldon,  1  Id.  170  ;  Bailey  v. 
Bailey  et  al.,  8  0.  R.  246  ;  Tarver  v.  Tarver 
et  al.,  1  Pet.  R.  180:  Patton  v.  Tallman, 
27  Maine  R.  17;  Singleton  v.  Singleton  et 
al.,  8  B.  Mon.  R.  348  ;  Adams  v.  DeCook,  1 
McAll.  C.  C.  R.  253  ;  and  the  latter  principle,. 
is  received  in  New  York,  Maryland,  and 
South  Carolina ;  Jackson  v.  Thompson,  6 
Cow.  R.  178  ;  Rogers  v.  Rogers,  3  Wend.  R. 
514  ;  Smith's  Lessee  v.  Steele,  1  Har.  &  Mc- 
Hen.  R.  419  ;  Darby  v.  Mayer  et  al.,  10 
Wheat.  R.  465  ;  Exrs.  of  Crossland  v.  Mur- 
dock,  4  McCord's  R.  217  ;  Warford  v.  Colvin, 
14  Md.  R.  532  ;  Tygart  v.  Peeples,  9  Rich. 
Eq.  R.  46. 

In  Pennsylvania,  by  the  seventh  section  of 
the  act  of  22d  of  April,  1856,  Purd.  Dig. 
(1861),  p.  275,  sec.  13,  "  The  probate,  by  the 
register  of  the  proper  county,  of  any  will  de- 
vising real  estate,  shall  be  conclusive,  as  to 
such  realty,  unless  within  five  years  from  the 
date  of  such  probate,  those  interested  to  con- 
trovert it,  shall,  by  caveat  and  action  at  law 
duly  pursued,  contest  the  validity  of  such 
will  as  to  such  realty  ;"  and  until  concluded 
by  lapse  of  time,  as  above  specified,  the  pro- 
bate is  only  prima  facie  evidence  in  regard 
to  real  estate  ;  Shinn  v.  Holmes,  25  Pa.  St. 
R.  142 ;  Baker  v.  McFerran,  26  Id.  211  ; 
Coates  V.  Hughes,  3  Bin.  R.  498  ;  Smith  v. 
Bonsall,  5  Raw.  R.  83 ;  Walmsley  v.  Read  et 
al.,  1  Yeat.  R.  87  ;  Spangler  v.  Rambler,  4 
Serg.  &  Raw.  R.  192  ;  Logan  v.  Watt  et  al., 


OF   A   WILL.  433 

tlie  ordinary  acts  of  administration,  such  as  receiving  and  giving 
receipts  for  debts  due  to  the  testator,  paying  the  debts  owing  by 
the  testator,  and  selHng  and  assigning  any  part  of  the  personal 
estate.  But  wlien  evidence  is  required  of  his  right  to  intermed- 
dle, the  probate  is  the  only  valid  proof;  without  it,  therefore,  no 
action  or  suit  can  be  maintained,  although  proceedings  may  be 
commenced  before,  *and  carried  up  to  the  point  where  ^ 
the  evidence  is  required. (rj^  ^        J 

The  jurisdiction  of  the  ecclesiastical  courts  over  wills  of  per- 
sonal estate  is  of  very  ancient  origin.  The  probate  of  walls  of 
personalty,  as  a  means  of  their  authentication,  appears  to  have 
been  in  use  from  the  very  earliest  times.     The  first  persons  by 

(;■)   Williams  on  Executors,  pt.  1,  bk.  4,  ch.  1,  s.  2  j  Stuart  v.  Burrowes,  1  Drury,  265, 
274. 

6  Id.  212  ;   Kowland  v.  Evans,  6  Pa.  St    R.  testamentary   are  granted,   have  any  power 

435  ;  Thompson  «.  Thompson,  9  Id.  234  ;  Dor-  to  dispose   of  any  part  of  the  estate  of  the 

micketal.  r.  Reichenback,  10  Serg.  &Raw.  R.  testator,  except  to   pay  funeral  charges,  nor 

89.     In   North  Carolina,  and  Tennessee  also,  to  interfere  in  any  manner,  with  such  estate, 

the  probate  is  regarded  as  prima  facie,  proof  further   than    is  necessary  for  its    preserva- 

as  to  real  estate  ;  Stanley  v.  Kean,  1  Tayl.  R.  tion."  Rev.  Stats.  ofO.  (1860),  p.  568,  sec.  11. 

93  ;   Weatherhead  v.  Sewell  et  al.,  9  Hump.  And  so  also,   in   Virginia,  and  New   York  : 

R.  282  ;   and  in  Louisiana  it  has  been  held,  2  Matthew's  Dig.  Va.  (1857),  p.  552,   §  1  ;  3 

that  it  is  at  least  prima  facie  evidence,  if  not  Rev.  Stats,  of  N.  Y.  (5th   ed.),  p.  156,  §  16  ; 

conclusive;   Donaldson  v.  Winter,    1   La.  R.  and  see  also  1  Md.  Code   (1860),  p.  627,  sec. 

144.  48;  1  Rev.  Stats,  of  Ky.  (1860),  p.  497,  sec.  1. 

In  the  State  of  Virginia,  Judge  Green,  in        In  Alabama,  it  has  been  decided,  that  ex- 

the  case  of  Bagwell  et  al.  v.  Elliott,  2  Rand,  ecutors  are  not  entitled  to  exercise  any  pow- 

R.  200,  decided,  that  it  was  not  "necessary  ers,    as    such,     other    than   collecting,    and 

that  a  will  should  be  proved  in  a  court  of  taking  care  of  the  estate,  until  they  have 

probate,  in  order  to  give  it  validity,  as  a  will  given  bond,  and  taken  the  oath  prescribed  ; 

of  lands.     The  only  effect  of  such  probate  is,  Cleveland  et  al.,  Exrs.,  v.  Chandler,  3  Stew. 

to  afford  one   mode  of  proof  that  the  will  is  R.  489  ;  nor,  will  their  assent  to    a   legacy, 

genuine  and  authentic  ;  but  the  mode  of  proof  before  probate,  give  any  title  to  the  legatee  ; 

allowable,  before  the   passing  of  those  stat-  Gardner  etal.  v.  Gault  et  al.,  19  Ala.  R.  666. 

uteg,  is  not  abolished  or  prohibited  by  them  ;  In   Vermont,  an   executor  has  no   authority 

that  is,  by  evidence  on  the  trial.     If  a  will  under  a  will,  until   the  same   is  approved  or 

offered  for   probate,    were  contested  and  re-  allowed   by   the  judge  of  probate  ;  Tucker, 

jected,  this  might  be  used  thereafter,  as  the  Exr.,  v.  Starks  et  al.,  Brayton's  R.  99.    And 

decision  of  a  competent  judicial  tribunal,  and  see    Trask   v.    Donoghue,     1    Aik.   R.    370; 

would  condemn  it  forever."    And  see.  Park-  Thomas  et  al.,  Exrs.,  v.  Cameron,  16  Wend. 

er's  Exrs.  v.  Brown's  Exrs.  et  al.,  6  Gratt.  R.  579.     But  in  New  Hampshire,  it  has  been 

R'  554.  held,  that  an  executor  derives  his  authority  . 

'  In  some  of  the  States  this  power  has  been  from  the  testator,  and  may  commence  an  ac- 

controUed    by  statute  ;  thus,   in   Ohio,  "No  tion,    as   such,   before    probate    of  the  will; 

executor  named  in  a  will,  shall,  before  letters  Strong,  Exrx.,  v.  Perkins,  3N.  H.  R.  617. 

28 


434  OF  PERSONAL  ESTATE  GENERALLY. 

whom  probate  was  granted  was  said  to  be  the  lords  of  manors ; 
and  some  vestiges  of  this  ancient  right  long  remained  in  the  case 
of  one  or  two  manors,  the  lords  of  which  retained  such  a  juris- 
diction(s)  until  abolished  by  the  Court  of  Probate  Act,  1857.(/) 
But  so  early  as  the  time  of  Glanville,  who  wrote  in  the  reign  of 
Ilenr}'  II,  the  ecclesiastical  courts  had  acquired  an  exclusive 
right  to  determine  on  the  validity  of  a  will  or  the  bequest  of  a 
legacy. {u)  And  from  this  period  the  right  of  the  church  to  inter- 
fere in  testamentary  matters  became  gradually  settled,  though 
not  without  much  opposition  on  the  part  of  the  temporal  lords. 

A  will  was  required  to  be  proved  in  the  court  of  the  bishop  or 
ordinary  in  whose  diocese  the  testator  dwelt,  and  within  whose 
jurisdiction  the  personal  effects  of  the  testator  consequently  lay. 
But  if  there  were  effects  to  the  value  of  5/.,  called  bova  notabilia, 
in  two  distinct  dioceses  or  jurisdictions  within  the  same  province, 
either  of  Canterbury  or  York,  the  will  was  required  to  be  proved 
in  the  Prerogative  Court  of  the  archbishop  of  that  province. (x) 
If  there  were  personal  effects  within  two  provinces,  the  will  must 

^,  „^^-,  have  been  proved  in  each  ^province,  either  in  the  Prerog- 

r  3071  

•-  -•  ative  Court,  or  in  some  court  of  inferior  jurisdiction;  ob- 
serving, as  to  each  province,  the  same  rule  as  would  have  applied 
had  the  testator  had  no  property  elsewhere.(?/)  If  probate  were 
granted  by  a  bishop,  or  other  inferior  judge,  in  a  case  where  the 
deceased  had  goods  to  the  value  of  5^.  in  any  other  diocese  in  the 
same  province,  such  probate  was  absolutely  void;  but  probate 
granted  by  an  archbishop,  in  a  case  where  the  deceased  had  not 
bo7ia  notabilia  in  divers  dioceses,  was  voidable  only,  and  not  abso- 
lutely void.(2:)  But  the  Court  of  Probate  Act,  1857,  now  renders 
valid  all  grants  of  probates  which  were  void  or  voidable  by 
reason  only  that  the  courts  from  which  they  were  obtained  had 
not  jurisdiction  to  make  such  grants,  except  where  the  same  had 

{s)  Wentworth's  Ex.,  14th  ed.  99,  100  ;  Toller's  Executors,  50. 

(t)  Stat.  20  &  21  Vict.  c.  77,  s.  3. 

(«)   Glanville,  lib.  7,  cc.  6,  7  ;  1  Reeves's  Hist.  Eng.  Law,  72. 

(.r)  Williams  on  Executors,  pt.  1,  bk.  4,  ch.  2.  For  an  account  of  the  rise  of  the  arch- 
bishop's jurisdiction,  see  Gent.  Mag.,  new  series,  vol.  12,  p.  582. 

(y)  Second  Report  of  Real  Property  Commissioners,  67. 

(2)  Wentworth's  Executors,  110,  14th  ed. ;  Lysons  v.  Barrow,  2  Bing.  N.  C.  486,  E.  C. 
L.  R.  vol.  29. 


OF   A   WILL.  435 

been  already  litigated. (a)  And  any  will  may  now  be  proved  in 
the  principal  registry  of  the  Court  of  Probate  without  regard  to 
the  abode  of  the  testator. (6)  But  if  the  testator  had  at  the  time 
of  his  death  a  fixed  place  of  abode  within  any  district,  his  will 
may  be  proved  in  the  registry  of  that  district  ;(c)  and  the  grant  so 
made  will  be  eifectual  even  if  the  testator  should  not  have  had 
any  fixed  place  of  abode  within  that  district. (f/) 

The  evidence  required  for  the  proof  of  a  will  varies  according 
to  the  form  of  the  attestation,  and  also  according  to  the  circum- 
stance of  the  validity  of  the  will  being  or  not  being  disputed. 
The  usual  and  proper  form  of  attestation  to  a  will  expresses  that 
the  formalities  required  by  the  Wills  Act(e)  have  been  complied 
with ;  thus,  "  Signed  and  declared  by  the  above-named  *A.  p^onoi 
B.,thetestator,  as  and  for  his  last  will  and  testament,  in  the  •-  -' 
presence  of  us,  both  present  at  the  same  time,  who,  at  his  request, 
in  his  presence,  and  in  the  presence  of  each  other,  have  hereunto 
subscribed  our  names  as  witnesses."  When  the  attestation  is  in 
this  form,  and  the  validity  of  the  will  is  not  disputed,  it  is  j^roved 
by  the  simple  oath  of  the  executor,  that  he  believes  the  will  to  be 
the  true  last  will  and  testament  of  the  deceased.  But  as  such  a 
form  of  the  attestation  clause  is  not  essential  to  the  validity  of 
the  will,(/)  wills  are  sometimes  informally  made  without  any 
clause  of  attestation,  or  with  a  clause  which  does  not  express 
that  the  required  formalities  have  been  complied  mth.  When 
this  occurs,  an  affidavit,  in  addition  to  the  executor's  oath,  is  re- 
quired from  one  of  the  subscribing  witnesses,  that  the  will  was 
executed  in  compliance  with  the  statute. (^)  Probate  in  either  of 
the  above  modes  is  termed  probate  in  common  form.  But  if  the 
validity  of  the  will  should  be  disputed,  or  any  dispute  should  be 
anticipated  by  the  executor,  the  will  is  proved  in  solemn  forrn  per 
testes.  In  this  case  both  the  witnesses  are  sworn  and  examined, 
and  such  other  evidence  taken  as  the  circumstances  require,  in 

(a)   Stat.  20  &  21  Vict.  c.  77,  s.  80. 

{h)  Sect.  59.  {d)  Sect.  47. 

<c)  Sect.  46. 

(e)  Stat.  7  Will.  IV  &  1  Vict.  c.  26,  s.  9,  ante,  p.  296. 

(/)  Stat.  7  AVill.  IV  &  1  Vict.  c.  26,  a.  9. 

(ir)  Williams  on  Executors,  pt.  1,  bk.  4,  ch.  3,  s.  3.  The  practice  of  the  Court  of  Pro- 
bate i.s  generally  the  same  as  the  old  practice  of  the  Prerogative  Court  of  the  Archbishop 
of  Canterbury;  stat.  20  &  21  Vict.  c.  77,  s.  29. 


436  OF    PERSONAL   ESTATE   GENERALLY. 

the  presence  of  the  widow 'and  next  of  kin  of  the  testator,  and 
all  others  pretending  to  have  any  interest,  who  are  cited  to  be 
present  to  see  the  proceedings.  When  a  will  has  once  been 
proved  in  this  form  it  is  finally  established,  and  the  executor 
cannot  be  compelled  to  prove  it  any  more  ;  but  when  a  will  has 
been  proved  merely  in  common  form,  the  executor  may,  at  any 
time  withni  thirty  years,  be  compelled  by  any  party  interested  to 
prove  it  per  testes  in  solemn  form. (A)  The  conttenious  jurisdiction 
with  ^respect  to  the  grant  and  revocation  of  probates  of 
'-  '  ^  wills  has  been  transferred  to  the  county  courts  in  cases 
where  the  personalty  is  under  the  value  of  200?.,  and  the  de- 
ceased was  not  at  the  time  of  his  death  beneficially  entitled  to 
any  real  estate  of  the  value  of  300?. (i) 

Probates  of  wills  are  required  by  act  of  Parliament  to  be 
stamped  with  an  ad  valorem  duty  according  to  the  value  of  the 
personal  estate  of  the  testator. (A-)^  The  efiects  of  the  testator 
within  the  jurisdiction  of  the  spiritual  judge  granting  probate 
were  formerly  alone  valued  for  this  purpose. (?)  But  it  is  now" 
provided  that  probate  shall  be  granted -in  respect  of  the  whole  of 
the  personal  and  movable  estate  and  efiects  of  the  deceased  in 
the  United  Kingdom. (???)  And  provisions  have  been  made  for 
extending  to  England,  Scotland,  and  Ireland  respectively  pro- 
bates granted  by  the  courts  of  probate  which  have  now  been 
established  in  England  and  Ireland,  and  confirmations,  as  they 
are  called,  of  executors  in  Scotland.(n)  A  recent  act  of  Parlia- 
ment provides  that  all  Indian  government  promissory  notes 
and  certificates  issued  or  stock  created  in  lieu  thereof,  being  assets 

{//)  Williams  on  Executors,  pt.  1,  bk.  4,  ch.  3,  s.  4. 

{i)   Stat.  21  &  22  Vict.  c.  95,  s.  10. 

(X.)   Stats.  55  Geo.  Ill,  c.  184  ;  5  &  6  Vict.  c.  79,  s.  2.3  ;  22  &  23  Viet.  c.  36,  s.  1. 

(I)  Attorney-General  v.  Hope,  2  01.  &  Fin.  84  j  Attorney-General  v.  Bouwens,  4  Mee.  k 
Wels.  171. 

(m)  Stat.  21  &  22  Vict.  c.  56,  s.  15. 

{n)  Stat.  20  k  21  Vict.  c.  79,  ss.  94,  95  ;  21  &  22  Vict,  c.  56,  ss.  12,  13,  14;  21  &  22  Vict, 
c.  95,  8.  29. 


1  By  the  Internal  Revenue  Act,  being  net  exceeds  two  thousand  dollars,  and  an  addi- 

of  Congress  of  March  3,  1865,  it  is  provided,  tional  tax  of  fifty  cents,  for  every  one  thou- 

that  upon  the  proof  of  wills  or  granting  letters  sand  dollars  value  of  the  estate  or  fractional 

of  administration,  a  tax  of  one  dollar  shall  part  of  one  thousand  dollars,  exceeding  two 

be   paid   whenever  the   value  of  the   estate  thousand  dollars. 


OF   A   WILL.  437 

of  a  deceased  person,  the  interest  whereon  shall  be  payable  in 
London  by  drafts  payable  in  India,  and  which  at  the  decease  of 
the  owner  thereof  shall  have  been  registered  in  the  books  of  the 
secretary  of  state  in  council  in  London,  or  in  the  books  of  the 
governor  and  company  of  the  Bank  of  England,  or  shall  have  been 
enfaced  in  India  for  the  purpose  of  being  so  registered  before  the 
decease  of  the  owner  thereof,  and  all  Indian  *goverument  p^oiA-i 
promissory  notes  issued  with  coupons  attached,  which,  ' 
under  such  regulations  and  conditions  as  may  be  determined  from 
time  to  time  by  the  secretary  of  state  in  council,  shall  be  so  regis- 
tered, and  all  certificates  issued  or  stock  created  in  lieu  thereof, 
shall  be  deemed  and  taken  to  be  personal  estate  and  bona  rioia- 
bilia  of  such  deceased  person  in  England;  and  probate  or  letters 
of  administration  in  England,  or  confirmation  granted  in  Scot- 
land and  sealed  with  the  seal  of  the  principal  court  of  probate  in 
England,  shall  be  suflicient  to  constitute  the  persons  therein 
named  the  legal  personal  representatives  of  the  deceased  with 
respect  to  such  notes  and  money  as  aforesaid.(o)  Probates  of 
wills  operating  merely  in  exercise  of  powers  of  appointment  over 
property  of  which  the  deceased  had  no  ownership,  were  formerly 
held  to  be  exempt  from  probate  duty  in  respect  of  the  value  of  the 
property  appointed,(2;)  But  it  is  now  provided  that  probate  duty 
shall  be  paid  in  respect  of  all  the  personal  or  movable  estate  and 
effects  which  any  person  dying  after  the  3d  of  April,  1860, 
shall  have  disposed  of  by  will  under  any  authority  enabling  such 
person  to  dispose  of  the  same  as  he  or  she  shall  think  fit.(5')  The 
distribution  of  the  effects  of  officers  and  soldiers  dying  on  service 
is  now  provided  for  by  the  Regimental  Debts  Act,  1863. (r)  Ex- 
emptions from  probate  duty  have  been  made  by  Parliament  in 
favor  of  the  effects  of  common  seamen,  marines,  and  soldiers, 
who  may  be  slain  or  die  in  the  Queen's  service, (5)  and  in  favor  of 
depositors  in  savings  banks  whose  whole  estate  and  effects  shall 
not  exceed  fifty  pounds  sterling.(^)  And  pay,  wages,  prize-money, 
or  *pension8  due  to  deceased  naval  ofificers,  marines,  sea-  p^^.-,-,-, 
men  and  others  employed  in  the  navy,  whose  whole  assets  •-         -' 

(o)   Stat.  23  Vict.  e.  5,  s.  1. 

(/))   Piatt  V.  Routh,  6  Mee.  &  Wela.  750  ;  .S  Beav.  257  ;  affirmed    in   the  House  of  Lords  ; 
Drake  v.  Attorney-General,  10  CI.  &  Fin.  257. 

{q)   Stat.  23  Vict.  c.  15,  s.  4.  (.v)   Stat.  55  Geo.  Ill,  c.  184. 

(r)   Stat.  26  &  27  Vict.  c.  57.  {t)  Stat.  9  Geo.  IV,  c.  92,  ss.  40-42. 


438  OF  PERSONAL  ESTATE  GENERALLY. 

shall  not  exceed  thirty-two  pounds,  are  allowed  to  he  paid  out 
without  probate  of  their  wills. («)  Probates  of  the  wills  of  petty 
officers  and  seamen  in  the  royal  navy,  and  of  marines  and  non- 
commissioned officers  of  marines,  are  placed  by  act  of  Parliament 
under  the  care  of  an  officer  called  the  inspector  of  seamen's  wills, 
and  are  subject  to  special  regulations,  made  to  prevent  frauds  on 
persons  proverbially  careless  and  liable  to  imposition. (x)  And 
with  respect  to  merchant  seamen,  the  Merchant  Shipping  Act, 
1854,  now  provides  that  if  the  money  and  effects  of  any  such  sea- 
man do  not  exceed  in  value  the  sum  of  50/.,  probate  may  be  dis- 
pensed with  at  the  discretion  of  the  Board  of  Trade. (^)  The 
probate  duty  is  in  the  first  place  paid  on  the  whole  value  of  the 
personal  estate  of  the  testator  without  allowing  for  his  debts ; 
and  after  the  debts  are  paid,  a  return  of  part  of  the  probate  duty 
is  made  according  to  the  value  to  which  the  estate  may  be  re- 
duced by  the  payment  of  the  debts.  But  as  some  persons  at- 
tempted to  evade  probate  duty  by  means  of  voluntary  bonds  to 
take  effi3ct  at  their  decease,  in  lieu  of  legacies,  it  is  now  provided 
that  no  return  of  probate  duty  shall  be  made  in  respect  of  any 
voluntary  debt  due  from  any  person  dying  after  the  28th  of  June, 
1861,  which  shall  be  expressed  to  be  payable  on  the  death  of  such 
person,  or  payable  under  any  instrument  which  shall  not  have 
been  bona  fide  delivered  to  the  donee  thereof  three  months  be- 
fore the  death  of  such  person. (2:) 

r*Qi  91  Wlien  the  will  has  been  proved,  it  is  the  duty  of  the  *ex- 
ecutor  to  pay  the  testator's  debts  out  of  the  personal 
estate,  to  which  such  executor  becomes  entitled  by  virtue  of  his 
office.  For  this  purpose  the  executor  has  reposed  in  him  by  the 
law  the  fullest  powers  of  disposition  over  the  personal  estate  of 
the  deceased,  whatever  may  be  the  manner  in  which  it  has  been 
bequeathed  by  the  will. (a)  And  in  the  event  of  a  sale  of  any 
such  property  by  the  executor,  the  purchaser  is  not  bound  to 

(«)   Stat.  4  &  5  Will.  IV,  c.  25,  s.  8. 

{x)  Stat.  11  Geo.  IV  &  1  Will.  IV,  c.  20,  ss.  55-58,  amended  by  stat.  2  &  3  Will.  IV,  c. 
40,  ss.  12,  13;  4  <t  5  Will.  IV,  c.  26,  s.  8;  Williams  on  Executors,  pt.  1,  bk.  4,  ch.  4;  bk. 
5,  ch.  2,  s.  4. 

(y)   Stat.  17  &  18  Vict.  c.  104,  s.  199. 

(s)   Stnt.  24  &  25  Vict.  c.  92,  s.  3. 

(a)  Ewer  V.  Corbet,  2  P.  Wms,  148  ;  Russell  v.  Plaice,  18  Beav.  21. 


OF   A   WILL.  439 

inquire  whether  there  are  any  debts  remaining  unpaid;  for  in 
the  absence  of  evidence  to  the  contrary,  the  executor  is  pre- 
sumed to  be  acting  in  the  proper  discharge  of  his  office. (6)  IS'or 
is  the  purchaser  at  all  concerned  with  the  application  which  the 
executor  may  make  of  the  purchase-money;  but  the  executor's 
receipt  will  be  a  sufficient  discharge,  and  he  alone  will  be  re- 
sponsible to  the  creditors  and  legatees  for  its  due  application. (<?) 
The  order  in  which  debts  ought  to  be  paid  out  of  the  personal 
estate  of  a  deceased  debtor  has  been  already  noticed  in  the 
chapter  on  debts ;(^/)  and  it  has  also  been  stated  that  the  executor, 
if  a  creditor,  is  entitled  to  retain  his  own  debt  in  preference  to  all 
others  of  the  same  degree. (e) 

"When  the  will  has  been  executed  after  the  28th  of  August, 
1860,  or  has  been  confirmed  or  revived  by  a  codicil  executed  after 
that  date,  the  executors  are  empowered  to  pay  any  debts  or 
claims  upon  any  evidence  that  they  may  think  sufiicient,  and  to 
accept  any  composition,  or  any  security,  real  or  personal,  for  any 
debts  due  to  the  deceased,  and  to  allow  any  time  for  payment  of 
any  such  debts  as  they  shall  think  fit,  and  also  to  *com-  r^^q-iq-i 
promise,  compound,  or  submit  to  arbitration  all  debts, 
accounts,  claims  and  things  whatsoever  relating  to  the  estate  of 
the  deceased;  and  for  any  of  the  purposes  aforesaid  to  enter  into, 
give  and  execute  such  agreements,  instruments  of  composition, 
releases  and  other  things  as  they  think  expedient,  without  being 
responsible  for  any  loss  to  be  occasioned  thereby.(/)  And  the 
executors  are  now  empowered  immediately,  or  at  any  time  after 
probate,  to  apply  to  the  Court  of  Chancery  for  an  order,  to  be 
made  upon  motion  or  petition  of  course,  or  by  the  judge  at 
chambers,  referring  it  to  the  chief  clerk  of  the  judge  to  take  an 
account  of  the  debts  and  liabilities  affecting  the  personal  estate 
of  the  deceased,  and  to  report  thereon;  and  after  any  such  order 
shall  have  been  made,  proceedings  at  law  by  the  creditors  against 

(b)  Nugent  V.  Qifford,  1  Atk.  4^3  ;  Elliot  v.  Merriman,  2  Atk.  42. 

(e)   Whale  v.  Booth,  4  T.  Rep.  625,  n.  ;   McLeoci  v.  Drummond,  17  Yes.  154. 

(d)  A7i.te,  pp.  99,  101,  105. 

(p.)   Ante,  p.  .305. 

(/)  Stat.  2.3  &  24  Vict.  c.  145,  s.  .30. 


440  OF    PERSONAL   ESTATE   GENERALLY. 

the  executors  may  be  restrained  or  suspended  by  the  court  until 
the  account  directed  by  such  order  shall  have  been  taken. (^)^ 

"Wlien  the  debts  have  been  paid,  the  legacies  left  by  the  testa- 
tor are  then  to  be  discharged.  In  order  to  give  the  executor 
sufficient  time  to  inform  himself  of  the  state  of  the  assets  and  to 
pay  the  debts  of  the  deceased,  he  is  allowed  a  twelvemonth  from 
the  date  of  the  death  of  the  testator  before  he  is  bound  to  pay 
any  legacies.(/i)  From  this  time  all  such  general  legacies  as 
remain  unpaid  carry  interest,  at  the  rate  of  four  per  cent,  per 
anuum.(«)  I^otwithstanding  the  lapse  of  a  year  from  the  testa- 
tor's death,  the  executor,  however,  is  still  liable  to  any  creditor  of 
the  deceased  to  the  amount  of  the  assets  which  have  come  to  the 
r*Qi/n  executor's  bands ;(/>;)  and  *if  he  should  have  paid  any 
legacies  in  ignorance  of  the  claims  of  the  creditor,  his 
only  remedy  is  to  apply  to  the  legatees  to  refund  their  legacies, 
which  they  will  be  bound  to  do,  in  order  to  satisfy  the  debt.(Z) 
From  this  liability  to  creditors,  an  executor  could  not  until 
recently  have  been  discharged,  unless  he  threw  the  property  into 
chancery,  in  which  case  the  court  undertakes  the  administration, 
and  the  executor  is  consequently  exonerated  from  all  risk.(/n) 

(g)   stats.  13  &  14  Vict.  c.  35,  s.  19  ;  23  &  24  Vict.  c.  38,  s.  14. 
(/i)  Ward  V.  Penoyre,  13  Ves.  333 ;  Benson  v.  Maude,  6  Madd.  15. 
{i)   Ward  v.  Penoyre,  iibi  supra. 

{l)  Norman  v.  Baldry,  6  Sim.  621;  Knatchbull  v.  Fearnhead,  3  My.  &  Cr.  122;  Hill  v. 
Gomme,  1  Beav.  540. 

(I)  March  v.  Ras,«ell,  3  My.  &  Cr.  31. 
(m)  3  Myl.  &  Or.  126. 


1  The  personal  representative  of  a  testator  Ladd  v.  Wiggin,  35  N.  H.  R.  421  ;  Thomas 

or  intestate,  is  bound  to  proceed  in  the  set-  v.  Reister,  3  Ind.  R.  369;  Walker  v.  Craig, 

tlement  of  the  estate,  in  such  manner  as  will  18  111.  R.  116.     As  to  the   obligation  of  an 

promote  the  interests  of  those  entitled  thereto,  executor,     or    administrator,   to    plead    the 

and  to    that    end   may  compromise   claims  ;  statute   of  limitations,   there  seems  to   be  a 

Chouteau  v.  Suydam,  21  N.  Y.  R.   179;    or  diversity   of    sentiment;    and    although    the 

■waive  formal  proof  thereof ;  Ander.'on'sAdmr.  better  opinion  is  that  he  has   a  discretion  on 

V.  Washabaugh,  43  Pa.  St.  R.  115  ;  or  anrbi-  the  subject  ;   Barnawell  v.  Smith,  5  Jones  Eq. 

trate  them  ;   Peter's  Ap.,  38  Pa.  St.  R.  239;  R.   168;    Semmes  v.  Magruder,   10    Md.    R. 

so,  also,   he  may  rescind  an  unfinished  con-  242  ;  Pollard  v.  Sears,   28  Ala.  R.  484  ;  Rit- 

tract  of  his  testator  or  intestate  :   Dougherty  ter's  Ap.,  23  Pa.  St.  R.  95  ;  yet,  there  is  not 

V.    Stephenson,    20   Pa.  St.  R.  210  ;   Gray  v.  wanting  authority,  that  the  personal    repre- 

Hawkins,  8  0.  R.  (N.  S.)  449  ;  or  assign  and  sentative    of  a  decedent    is  without   discre- 

transfer  the  securities  belonging  to  the  estate  ;  tion,  and   must  plead  the   statute;  Rector  f. 

Speelman   v.    Culbertson,    15  Ind.   R.   441;  Conway,  20  Ark.  R.  79. 


OF   A   WILL. 


441 


But  a  recent  act  exonerates  executors  from  all  liability  to  the 
rents  and  covenants  of  any  leasehold  or  other  property  liable  to 
rents  or  covenants  after  an  assignment  made  by  him  to  a  pur- 
chaser, provided  he  shall  have  set  apart  a  sufficient  fund  to 
answer  any  future  claim  in  respect  of  any  tixed  and  ascertained 
sum  agreed  by  the  lessee  or  grantee  to  be  laid  out  on  the  prop- 
erty. (?/)'  And  it  is  further  provided,  that  where  an  executor 
shall  have  given  the  like  notices  as  would  have  been  given  by 
the  Court  of  Chancery  in  an  administration  suit,  for  creditors 
and  others  to  send  in  their  claims  against  the  estate  of  the  testa- 
tor, the  executor  may  distribute  the  assets  amongst  the  parties 
entitled,  without  liability  to  any  person  of  whose  claim  he  shall 
not  have  had  notice  at  the  time  of  distribution. (o)  The  executor 
is  of  course  not  answerable  to  the  testator's  creditors  beyond  the 
amount  of  assets  which  have  come  to  his  hands,(_^^)  unless  he 
should  for  sufficient  consideration  give  a  written  promise  to  pay 
personally,(^)  or  should  do  any  act  amounting  *to  an  ad-  pgi^-i 
mission  that  he  has  assets  of  the  testator  sufficient  for  the 
payment  of  the  debts. (r)^ 

(71)   Stat.  22  &  23  Viet.  c.  35,  ss.  27,  28.    This  act  extends  to  leases  made  before  it  passed  ; 
Smith  V.  Smith,  1  Drew.  &  Smale,  684  ;  Re  Green,  2  De  Gex,  F.  &  J.  121. 
(o)   Stat.  22  &  23  Vict.  c.  35,  s.  29. 
(p)   Bac.  Abr.  tit.  Executors  (P),  1. 

{q)   Stat.  29  Car.  II,  c.  3,  s.  4  ;  ante,  p.  74  ;   1  Wms.  Saiind.  210,  n.  (1)  ;  211,  n.  (2). 
(>•)   Horsley  v.  Chaloner,  2  Ves.  Sen.  83. 


1  Though  the  covenant  in  a  ground  rent  Tandj'  et  al.,  3  Bibb's  R.  97  ;  Byrd  v.  Hollo- 
deed,  is  personal  on  the  part  of  the  covenantor,  waj-,  6  Smed.  &  Mar.  R.  199  ;  Loundes,  ic. 
yet  as  to  arrears  of  rent  accruing  after  his  v.  Pinckney  et  al.,  2  Strobh.  E.  R.  44  ;  Rob- 
decease,  the  landlord  is  restricted  to  the  inson  v.  Lane,  14  Smed.  &  Mar.  R.  161  ; 
realty  out  of  which  it  issues,  and  is  not  en-  Clayton  v.  Wardell,  2  Bradf.  R.  1  ;  but, 
titled  to  payment  out  of  money  in  the  where  he  has  been  in  possession  of  assets,  and 
hands  of  the  executors.  But  the  personal  has  handed  them  over  to  his  co  executor  or 
representatives  of  the  covenantor,  may  be  administrator,  or  other  person,  or  has  in 
sued  for  the  breaches  of  the  covenant  in  the  any  way  connived  at  the  possession  of  the 
ground-rent  deed,  occurring  after  his  death,  assets  by  his  co-executor  or  administrator, 
though  the  judgment  will  be  restricted  to  the  he  will  be  responsible  for  their  adminis- 
land  bound  by  the  covenant ;  Williams's  Ap.,  tration  ;  Douglass  v.  Satterlee  et  al.,  Admrs., 
47  Pa.  St.  R.  283.  11   Johns.  R.  16  ;  Stewart  v.  Conner.  9  Ala. 

2  An  executor  or  administrator  can  only  R.  803  ;  Edmonds  el  al.  v.  Crenshaw,  14  Pet. 
be  made  answerable  for  the  assets  which  come  R.  166;  Mesick,  Exr.,  i>.  Mesick  et  al.,  7 
to  his  hands;  Douglass  v.  Satterlee  et  al.,  Barb.  S.  R.  120;  Clarke  v.  Jenkins  et  al.,  3 
Admrs.,  11  Johns.  R.  16  ;  "Williams  v.  Hoi-  Rich.  E.  R.  319  ;  Tilton  v.  Tilton,  41  N.  H. 
den,  4  Wend.  R.  229  ;  Call  et  al.,  Exrs.,  v.  R.,  479  ;  and  so  where  he  postpones  the  col- 
Ewing,  1  Biackf.  R.  301  ;   Moore's  Admrs.  v.  lection  of  a  debt  due  the  estate,  until  it  is 


442 


OF   PERSONAL   ESTATE   GENERALLY. 


On  the  payment  or  delivery  of  any  legacy  of  the  amount  or 
value  of  20^.  or  upwards,  whether  payable  out  of  the  estate  of  the 
testator,  real  or  personal,  or  out  of  any  real  or  personal  estate 
over  which  he  had  a  power  of  appointment, (5)  a  receipt  must  be 
given  by  the  legatee,  which  is  chargeable  with  a  duty,  called  the 
legacy  duty,  on  the  amount  or  value  of  the  legacy.(;')  But  no 
sura  of  money,  which  by  any  marriage  settlement  is  subjected  to 
any  limited  power  of  appointment  to  or  for  the  benetit  of  any 
person  or  persons  therein  specially  named  or  described  as  the  ob- 
ject or  objects  of  such  power,  or  to  or  for  the  benefit  of  the  issue 
of  any  such  person  or  persons,  is  liable  to  legacy  duty  under  the 
will  in  which  such  sum  is  appointed  or  apportioned  in  exercise 

{s)  Stat.  8  A  9  Vict.  c.  76,  s.  4 ;  Attorney-General  v.  Marquis  of  Hertford,  3  Ex.  Rep. 
670. 

(t)   Stat.  36  Geo.  Ill,  c.  52,  s.  27. 


lost;  Shafifer's  Ap.,  10  Pa.  St.  R.  131  ;  Cason 
V.  Cason,  31  Missi.  R.  578. 

A  promise,  however,  made  by  an  executor 
or  administrator,  in  writing,  to  pay  the  debt 
of  his  testator  or  intestate,  will  make  him  in- 
dividually liable  ;  Ciples  v.  Alexander,  2  Con- 
stitutional R.  768  ;  Robinson  v.  Lane,  14 
Smed.  &  Mar.  R.  161  ;  Carter  v.  Thomas,  3 
Cart.  R.  213  ;  provided,  it  be  made  upon  a 
suflBcient  consideration  ;  Byrd  v.  Holloway, 
6  Smed.  &  Mar.  R.  199  ;  Mosely  et  al.  v. 
Taylor,  4  Dana's  R.  542  ;  Robinson  v.  Lane, 
14  Smed.  &  Mar.  R.  161  ;  and,  forbearance  is 
a  sufficient  consideration  ;  Taliaferro  v.  Robb 
et  al.,  Admrs.,  2  Call's  R.  217  ;  Mosely  et  al. 
V.  Taylor,  4  Dana's  R.  542  ;  but  a  verbal 
promise,  even  if  upon  a  good  consideration, 
will  not  be  binding,  in  those  States,  where  the 
statute  of  frauds  requires  the  promise  of  an 
executor  to  pay  the  debt  of  his  testator,  to  be 
in  writing,  as  falling  within  the  provisions  of 
that  statute  ;  Harrington  v.  Rich,  6  Vt.  R. 
666. 

But  where  an  executor  admits  that  he  has 
assets,  or  does  any  act  amounting  to  such  an 
admission,  he  will  make  himself  individually 
responsible  for  the  debts  of  the  decedent  ; 
Taliaferro  v.  Robb  et  al.,  Exrs.,  2  Call's  R. 
217;  Ten  Eyck  v.  Vanderpoel,  8  Johns.  R. 
120  ;  Sleighter  v.  Harrington,  Exrx.,  2  Tayl. 
R.  249  ;  Sims  v.  Stilwell,  3  How.  (Missi.)  R. 


181  ;  Loundes,  &c.,  v.  Pinckney  et  al.,  2 
Strobb.  E.  R.  44  ;  Irwin's  Ap.,  35  Pa.  St.  R. 
294  ;  Colwell  v.  Alger,  5  Gray's  R.  67 ;  Sam- 
ple V.  Lipscomb,  18  Geo.  R.  687  ;  Ciples  v. 
Alexander,  2  Constitutional  R.  768  ;  in  which 
last  case,  it  was  said  by  Judge  Bay:  "As 
there  is  no  privity  of  contract  between  the 
executor  or  administrator,  and  a  testator  or 
intestate's  creditor,  it  is  not  presumed  in  law, 
that  they  can  know  whether  a  demand  is  just 
or  unjust.  And  therefore,  a  bare  admission 
alone,  on  the  part  of  an  executor  or  adminis- 
trator, is  not  sufficient  to  charge  the  estate 
with  the  debt,  although  they  may  admit  they 
have  assets  for  that  purpose,  and  that  will 
charge  them  in  case  of  a  deficiency,  provided 
that  there  is  a  legal  recovery  against  them." 
"A  promissorj' note  imports  a  considera- 
tion, and  it  is  unnecessary  to  state  any  in 
pleading,  or  to  prove  any  upon  the  trial,  in 
the  first  instance.  AVhen  such  note  is  given 
by  an  executor  or  administrator,  it  is  prima 
facie  evidence  of  assets,  because  they  are  the 
legal  consideration,  upon  which  the  promise 
ought  to  be,  and  is  presumed  to  be,  founded  ; 
it  is,  however,  but  jnima  facie  evidence  be- 
tween the  original  parties,  and  the  defendant 
may  show  that  in  fact  there  was  a  deficiency 
of  assets,  and  of  course  no  consideration  to 
support  the  note."  Bank  of  Troy  v.  Topping 
et  al.,  13  Wend.  R.  557  ;  S.  C,  9  Id.  273. 


OF   A   WILL.  443 

of  such  limited  power.(w)  The  amount  of  legacy  duty  varies  ac- 
cording to  the  degree  of  relationship  which  the  legatee  bore  to 
the  deceased.^  Where  the  legacy  is  to  a  child  or  lineal  descend- 
ant, or  to  the  father  or  mother  or  any  lineal  ancestor  of  the  de- 
ceased, the  duty  is  one  per  cent.  If  to  a  brother  or  sister,  or  any 
descendant  of  a  brother  or  sister,  the  duty  is  three  per  cent.  If 
to  a  brother  or  sister  of  the  father  or  mother  of  the  deceased,  or 
any  descendant  of  such  brother  or  sister,  five  per  cent.  If  to  a 
brother  or  sister  of  a  grandfather  or  grandmother  of  the  deceased, 
or  any  descendant  of  such  brother  or  sister,  six  per  cent.  And 
if  the  legacy  be  to  any  person  in  any  other  degree  of  collateral 
consanguinity  to  the  deceased,  or  to  any  stranger  in  blood,  the 
duty  is  ten  per  cent.(a:)  But  the  husband  or  wife  of  the  deceased 
are  exempt  *from  all  legacy  duty,  and  so  also  are  the  r^q-io-i 
royal  family.  By  the  Succession  Duty  Act,  1853,  lease- 
hold property,  although  personal  estate,  is  exempted  from  legacy 
duty,  and  is  charged  in  lieu  thereof  with  a  succession  duty,  cal- 
culated upon  the  same  principles  as  the  duty  on  real  property.(?/) 

(;/,)   Stat.  8  &  9  Vict.  c.  76,  s.  4. 
(x)  Stat.  55  Geo.  Ill,  c.  184. 

(y)   Stat.  16  &  17  Vict.  c.  51,  ss.  1,  19,  21.     See  Principles  of  the  Law  of  Keal  Property, 
240,  4th  ed.  ;  249,  5th  ed.  ;  259,  6th  ed. 


1  By  the  124th  section  of  the  act  of  Con-  limitation  of  the  tax  as  regards  the  amount 

gress  of  the  3d  of  March,  1865,  legacies  and  of  the  estate.     But  no  duty  is  to  be  paid,  for 

distributive  shares  of  the  estates  of  decedents,  any  legacy  or  distributive  share  of  personal 

which  exceed  in  amount  the  sum  of  one  thou-  property,  to  the  husband  or  wife  of  the  dece- 

gand  dollars,  are  made  liable  to  a  duty,  or  dent,  nor  for  any  succession  of  real  estate, 

tax,  to  be  paid  to  the  United  States,  after  the  where  the  successor  shall  be  the  wife  of  the 

following  rate,  to  wit :  To  a  lineal  ancestor  or  predecessor. 

descendant,  or  brother  or  sister  of  decedent,  The  statutes  of  Pennsylvania  contain  pro- 
one  per  centum  ;  to  a  descendant  of  a  brother  visions,  by  which  collateral  inheritances  are 
or  sister  of  the  decedent,  two  per  centum  ;  to  subjected  to  a  certain  tax  ;  this  tax  does  not 
a  brother  or  sister  of  the  father  or  mother  of  vary  according  to  the  degree  of  relytion.«hip, 
a  decedent,  or  a  descendant  of  such  brother  as  in  the  English  laws,  and  the  Internal  llev- 
or  sister,  four  per  centum  ;  to  a  brother  or  enue  Act  above  referred  to,  but  is  fixed  at 
sister  of  the  grandfather  or  grandmother  of  a  five  per  cent,  upon  the  estate,  real,  personal, 
decedent,  or  a  descendant  of  such  brother  or  or  mixed,  of  every  decedent,  coming  to,  or 
sister,  five  per  centum  ;  to  any  other  degree  about  to  be  enjoyed  by,  any  other  person 
of  collateral  relationship,  or  to  a  stranger,  than  the  "father,  mother,  husband,  wife, 
six  per  centum.  The  succession  of  real  es-  children,  and  lineal  descendants  of  such 
tate,  is,  by  the  1.33d  section  of  the  same  act,  decedent,"  provided,  the  estate  of  the  deoe- 
Bubjected  to  the  same  tax,  with  the  exception,  dent  exceeds  in  amount  two  hundred  and 
that  the  brother  or  sister  of  decedent  must  fifty  dollars.  Purd.  Dig.  (1861),  p.  148,  Ac. 
pay  a  tax  of  two  per  centum,  and  there  is  no 


444  OF  PERSONAL  ESTATE  GENERALLY. 

If  a  legacy  be  given  to  an  infant,  or  to  a  person  absent  beyond 
the  seas,  the  only  way  in  which  the  executor  can  obtain  a  proper 
discharge  for  such  legacy  is  by  paj-ment  of  it,  after  deducting  the 
legacy  duty,  into  the  Bank  of  England,  with  the  privity  of  the 
accountant-general  of  the  Court  of  Chancery,  to  be  placed  to  the 
account  of  the  person  for  whose  benefit  the  same  shall  be  so  paid. 
The  money  is  then  laid  out  by  the  accountant-general  in  the  pur- 
chase of  consols,  which,  with  the  dividends  thereon,  are  after- 
wards transferred  and  paid  to  the  person  entitled,  or  otherwise 
applied  for  his  benefit,  on  application  to  the  Court  of  Chancery 
b}'  petition  or  motion  in  a  summary  way.(2:)  The  legacy  duty  on 
annuities  for  lives  is  fixed  by  tables  given  in  the  Succession  Duty 
Act,  and  is  payable  by  four  equal  payments,  to  be  made  succes- 
sively on  completing  each  of  the  first  four  3'ears'  payments  of  the 
annuity.  («) 

A  legacy'  may  be  either  specific,  demonstrative,  or  general.^ 

(2)   Stat.  3fi  Geo.  Ill,  c.  52,  s.  32;  Ex  parte  Bennett,  V.  C.  K.  B.,  15Jur.  213. 
(a)   Stat.  16  &  17  Vict.  c.  51,  s.  31  ;  36  Geo.  III.  c.  52,  s.  8. 


?   "A  specific  legacy,  is  a  disposition  of  a  stock,  or  in  my  stock.     But  if  the  testator 

certain  thing,  which  may  be  known  and  dis-  did  not  ovu  the  stock  when  he  made  the  will, 

tinguished  from  any  other  thing  of  the  same  or  died,  but  directed  it  to  be  purchased  out  of 

kind  ;"  hence,  a  bequest  of  "my  East  Had-  his  personal  estate,  for  particular  persons:  on 

dam  bank  stock"  is  a  specific  legacy;  Brain-  the  question  whether  these  legacies  were  spe- 

erd  V.   Cowdry,   16  Conn.   R.   1;   or,  of  "all  cific,  or  pecuniary,  it  was  held  by  the  court, 

my  stock  which  I  hold  in  the  Union  Bank  of  that  they  were  pecuniary;"  White  et  al.   v. 

Pennsylvania;"   Blackstone. r.  Blackstone,  3  Beattie,  Exr.,  1  Dev.  E.  R.  87,  S.  C.  Id.  320. 

Wat.  R.  335  ;  and  so,  a  bequest  of  a  horse.  And  see,  also.   Smith  v.  Smith,   23  Geo.  R, 

or  other  individual  thing,  or  money  in  a  bag,  21. 

or  drawer,  is  a  specific  legacy;  Mathis  v.  "So,  a  bequest  by  a  testator  to  his  wife,  in 
Mathis,  3  Harrison's  R.  59.  "But  if  a  sum  the  following  words:  'I  wish  her  to  take 
of  money  is  bequeathed,  to  be  laid  out  in  the  Stanford  in  her  third  of  the  property,  if  she 
purchase  of  lands,  or  to  be  vested  in  partieu-  chooses,'  is  not  a  specific  legacy  to  the  wife, 
lar  securities,  it  is  a  mere  pecuniary  legacy  ;  but  only  gives  her  the  right  to  take  the 
for  the  legatee  cannot,  in  that  case,  sever  legacy  at  a  fair  valuation  ;  and  if  that 
that  from  the  general  fund,  so  as  to  establish  valuation  is  more  than  her  share,  she  must 
a  right  to  the  identical  sum  in  specie.  And  account  for  the  surplus;"  Young  et  al.  v. 
this  he  must  be  able  to  do,  in  order  to  make  Carson,  Admr.,  et  al.,  1  Dev.  &  Bat.  R.  360. 
his  legacy  specific.  Thus,  in  a  bequest  of  And,  where  a  testator  bequeaths  bank  stock 
stock,  if  the  testator  owned  it  at  the  time,  it  generally,  without  saying  it  is  the  bank  stock 
is  specific  ;  more  especially,  if  it  can  be  col-  he  owns,  the  bequest  will  be  general,  and  not 
lected,  from  the  will,  that  the  testator  in-  specific.  But  when,  after  giving  several  leg- 
tended  to  confine  the  bequest,  to  the  stock  he  acies  of  bank  stock,  in  giving  another  legacy 
had  on  hand  at  the  time  of  his  death.  As  if  of  bank  stock,  he  used  this  expression,  "In 
the  legacy  be  of  my  stock,   or  part  of  my  ease  there  should  be  any  deficiency  in  the 


OF   A   WILL. 


445 


A  specific  legacy  is  a  bequest  of  a  specific  part  of  tlie  testator's 
personal  estate.     Thus  a  bequest  of  "the  service  of  plate,  which 


bank   stock,  which  I  hold  at  my  death,  as 
compared  with  the  amount  bequeathed  in  my 
will   and   testament,"'   it  was  held,   that  he 
meant  the  stock  which  he  should  then  have, 
and    therefore    the    legacies    were    specific ; 
McGuire  et  al.  v.  Evans  et  al.,  5  Ired.  E.  R. 
209.     See,  also,  Hofif 's  Ap.,  24  Pa.  St.  R.  200. 
For  other  instances  of  specific  legacies,  see 
Cuthbert  et  al.  v.  Cuthbert  et  al.,  3  Yeat.  R. 
4S6  ;   Stiekney    v.    Davis,    16    Pick.    R.   21  ; 
White  V.  Winchester,  6  Id.  56  ;  Stout  v.  Hart 
et  al.,  Exrs.,  2  Halst.  R.  414  ;  Walton  v.  Wal- 
ton, 7  Johns.  C.  R.  262  ;  Lillard  v.  Reynolds, 
o  Ired.  R.  370  ;  Chase  v.  Lockerman,  11  Gill 
&  Johns.  R.  186  ;  Hammond  v.  Hammond,  2 
Bland's    R.   314;    Perry,   Exr.,  v.   Maxwell, 
Exr.,  2  Dev.  E.  R.  488  ;   Everitt  v.  Lane,  2 
Ired.  E.  R.  550  ;  Warren,  Exr.,  v.  Wigfall  et 
al.,  3  Desauss.  R.  47  ;  Wharley  v.  Wharley,  1 
Bail.  E.  R.  397  ;  Gilbreath  v.  Alban  et  al.,  10 
0.  R.  64;  Howell  et  al.  v.  Hooks's  Admr.,  4 
Ired.  E.  R.  188  ;   Christler's  Exr.,  v.  Meddis, 
Admr.,  6  B.  Mon.  R.   37  ;  Alsop's  Appeal,  9 
Pa.  St.  R.  374  ;  Scholl  v.  Scholl,  5  Barb.  S. 
R.  312;    McGuire    et  al.   v.  Evans  et  al.,  5 
Ired.  E.  R.  269  ;  Bailey  et  al.,  Exrs.,  v.  Wag- 
ner et  al.,  2  Strobh.  E.  R.  1  ;    Ludlam's  Es- 
tate, 13  Pa.  St.    R.  188 ;    Buchanan  v.  Pue, 
Jr.,   Exr.,   6  Gill's  R.   112;   Van  Wagener, 
Exr.,  V.  Baldwin  et  al.,  3  Halst.  C.  R.  211  ; 
Woods  V.  Sullivan,  1  Swan's  R.  507  ;  Hoke  v. 
Herman,  21  Pa.  St.  R.  301  ;  Wallace  v.  Wal- 
lace, 3  Fost.  R.149;  McGlaughlin's  Exr.  v.  Mc- 
Glaughlin's  Admr.,  24  Pa.  St.  R.  20.     "  If  a 
thing  bequeathed  in  a  will,  by  such  a  descrip- 
tion as  to  distinguish  it  from  all  other  things, 
be   disposed  of,   so   that  it  does   not  remain 
at  the  death  of  the  testator,  or  if  it  be  so 
changed  that  it  cannot  be  called  the   same 
thing,  the  bequest  is  gone.     If  .such  a  legacy 
be  of  a  debt,  payment  necessarily  makes  an 
end  of  it.     The  legatee  is  entitled  to  the  very 
thing  bequeathed,  if  it  be  possible  for  the  ex- 
ecutor to  give  it  to  him  ;  but  if  not,  he  can- 
not have  money  in  place  of  it.     This  results 
from  an  inflexible  rule  of  law,  applied  to  the 
mere  fact,  that  the  thing  bequeathed  does  not 
exist,  and  it  is  not  founded  on  any  presumed 
intention  of  the  testator  ;"  Hoke  v.  Herman, 


21  Pa.  St.  R.  301  ;  Blackstone  v.  Blackstone, 
3  AVat.  R.    335;    Gilbreath  v.  Alban   et  al., 
Exrs.,  10  0.  R.  64;  Newcomb,  Admr.,  v.  St. 
Peter's  Church  et  al.,  2  Sanf.  C.  R.  637  ;  Al- 
sop's Appeal,  9  Pa.   St.  R.  374;  McGuire  et 
al.  V.  Evans  et  al.,  5  Ired.  E.  R.  269  ;  Bailey 
et  al.,  Exrs.,  v.  AVagner  et  al.,  2  Strobh.  E. 
R.  ]  ;    Ludlam's  Estate,  13  Pa.  St.  R.  188  ; 
Beck  V.  McGillis,  9  Barb.  S.  R.  35  ;   but  "a 
legacy  is  not  extinguished  or  destroyed  by  a 
variation  of  the  testator's  interest,  produced 
by  operation  of  law  ;  as  where  the  bequest  is 
of  certain  bank  shares,  and  the  charter  of  the 
bank  expires,  and  the  funds  are  conveyed  to 
trustees,  who  divided  the   moneys  received, 
among  the  stockholders  ;    if  the  testator  re- 
ceives part  of  the  dividends  from   the    trus- 
tees, in  his  lifetime,  it  is  an  ademption  2)ro 
tanto.  only  ;"  Walton  v.  Walton,  7  Johns.  C. 
R.  262  ;  Hoke  v.  Herman,  21  Pa.  St.  R.  301  ; 
and  where  there  is  a  bequest  of  the  proceeds 
of  a  certain  bond  and  mortgage,  and  the  tes- 
tator collects  any   portion  of   the   mortgage 
debt,  and  appropriates  it  to  other  purposes, 
the  legacy  is  so  far  adeemed,  and  the  legatee 
will  not  be  entitled  to  be  reimbursed  out  of 
other  property  of  the  estate  of  the  testator  ; 
but  where  the  testator  takes  a  bond,   of  the 
purchaser  of  a  part  of  the  mortgaged  premi- 
ses, for  a  proportionate  account  of  the  mort- 
gage debt,  but  the  mortgage  is  not  released 
from  the  land   sold,  such  bond  and  its  pro- 
ceeds, are  proceeds  of  the  original  bond  and 
mortgage,  and  go  to  the  legatee  ;   Gardiner 
et  al.,  Exrs..  v.  Printup  et  al.,  2  Barb.  S.  R. 
83  ;  so,  also,  where  a  testator  made  a  specific 
bequest,  of  all  notes  of  hand  which  were  then 
payable  to  him,  and  was  then  in  possession  of 
four  notes,  signed  by  two  persons,  and  after- 
wards, before  his  death,  released  one  of  the 
signers,  and  took  new  notes  for  the  debt,  from 
the  other  signer,  secured  by  a   mortgage  ;  it 
was  held,  that  there  was  no  ademption  of  the 
legacy  ;  Ford  f.  Ford,  3  Fost.  R.  212  ;  and  see, 
also.   Woods  et  al.  v.  Moore,   4  Sanf.  S.  R. 
589  ;  Van  Wagener,  Exr.,  v.  Baldwin  et  al.,  3 
Halst.  C.  R.  211  ;  Stout  v.  Hart  et  al.,  Exrs., 
2  Ilnlst.  R.  414;  in  the  latter  of  which,  a  dis- 
tinction 18  taken  between  voluntary  and  com- 


446  OF   PERSONAL   ESTATE   GENERALLY. 

was  presented  to  me  on  such  an  occasion,"  is  specific,  and  so  also 
is  a  bequest  of  "100^.  consols,  now  standing  in  my  name  at  the 
*Bank  of  England,"(6)  or  of  "100/.  consols,  part  of  my 
'-  -^  stock. "((?)  A  specific  legacy  must  be  paid  or  retained  by 
the  executor  in  preference  to  those  which  are  general,  and  must 
not  be  sold  for  the  payment  of  debts  until  the  general  assets  of 
the  testator  are  exliausted.((i)  It  is,  however,  liable  to  ademjAion 
by  the  act  of  the  testator  in  his  lifetime.  Thus,  in  the  instances 
given  above,  if  the  testator  should  part  with'the  plate,  or  sell  the 
stock  in  his  lifetime,  the  legacy  will  be  adeemed,  and  the  legatee 

{h)  Koper  on  Legacies,  c.  3  ;  Gordon  v.  Duff,  28  Beav.  519. 

(c)  Kirby  v.  Potter,  4  Ves.  750  a ;  Hayes  v.  Hayes,  1  Keen,  97  ;  Shuttleworth  v.  Greaves, 
4  M.  &  Or.  35. 

{(l)  Brown  v.  Allen,  1  Vern.  31  ;  Hinton  v.  Pinke,  1  P.  Wtns.  539  ;  Sleech  v.  Thorington, 
2  Ves.  Sen.  560. 


pulsory  payments,  as  regards  the  ademption  cuniary  in  another ;  specific,  as  given  out  of 

of  a  specific  legacy.  a  particular  fund,  and  not  out  of  the  estate 

Specific  legacies  cannot  be  applied  to  the  at   large  ;  pecuniary,    as  consisting   only  of 

payment   of  the  debts  of  the  testator,  until  definite  sums  of  money,  and  not   amounting 

the  general  funds  of  the  estate  are  exhausted  j  to  a  gift  of  the  fund   itself,  or   any  aliquot 

Brainerd  v.  Cowdrey,  16  Conn.  R.  1  ;   White  part    of  it,  the  mention  of   the  fund    being 

et  al.  V.  Beattie,    Exr.,  1   Dev.    E.   R.   320;  considered  rather  by  way  of  demonstration 

Wallace    v.  Wallace,    3  Post.  R.   149  ;   Shaw  than  condition — rather  as  showing  how,  or 

V.  McBride,  3  Jones's  Eq.  R.  173.  by  what  means  the  legacy  may  be  paid,  than 

"The  courts  are  disinclined  to  recognize  whether  it  shall  be  paid  at  all.  .  .  .  In  this, 
specific  legacies,  because  of  their  liability  to  as  in  other  questions,  springing  from  the 
sink  with  the  destruction  of  the  thing  be-  construction  of  wills,  the  intention  of  the 
queathed,  or  the  fund  charged.  But  as  it  testator  is  to  be  principally  ascertained,  and 
was  obviously  impossible  to  esteem  as  purely  it  is  said  to  be  necessary,  that  the  intention 
pecuniary,  many  of  the  testamentary  gifts,  be  either  expressed  in  reference  to  the  thing 
which  judges  inclined  to  withdraw  from  the  bequeathed,  or  otherwise  clearly  appear  from 
class  of  specific  legacies,  they  were  driven  to  the  will,  to  constitute  a  legacy  specific.  If 
borrow  from  the  civilians  a  term,  thought  to  it  be  manifest  there  was  a  fixed  and  indepen- 
be  descriptive  of  a  speciesof  donation,  holding  dent  intent  to  give  the  legacy,  separate  and 
a  middle  place  between  specific  and  pecu-  distinct  from  the  property  designated  as  the 
niary,  the  only  kinds  distinctly  recognized  source  of  payment,  the  legacy  will  be  deemed 
when  Swineburne  wrote.  They  are  called  general  or  demonstrative,  though  accompa- 
deinonstratice,  and,  like  general  legacies,  are  nied  by  a  direction  to  pay  it  out  of  a  par- 
gifts  of  mere  quantity,  but  differ  from  these  ticular  estate,  or  fund,  specially  named." 
by  being  referred  to  a  particular  fund  for  Walls  v.  Stewart,  16  Pa.  St.  R.  280.  And 
payment.  They  are  so  far  general,  that  if  see  also,  Enders,  Exr.,  i'.,  Enders,  2  Barb.  S. 
the  particular  fund  be  called  in  or  fail,  the  R.  362  j  In  re  Barklay's  Estate,  10  Pa.  St.  R. 
legatees  will  be  permitted  to  receive  their  387 ;  Bullict's  Appeal,  14  Id.  461 ;  Wal- 
legacies  out  of  the  general  assets  ;  yet  so  far  lace  v.  Wallace,  3  Fost.  R.  149  ;  Walton  v. 
specific,  as  not  to  be  subject  to  abatement  Walton,  7  Johns.  C.  R.  262 ;  Giddings  v. 
with  general  legacies,  on  deficiency  of  assets.  Seward,  16  N.  Y.  R.  365;  Irwin's  Ap.,  28 
They  are  thus  specific  in  one  sense,  and  pe-  Pa.  St.  R.  363. 


OF   A   WILL.  447 

will  lose  all  benefit.(<;)  A  demonstrative  legacy  is  a  gift  by  will 
of  a  certain  sum  directed  to  be  paid  out  of  a  specific  fund.  Thus, 
"I  bequeath  to  A.  B.  the  sum  of  501.  sterling,  to  be  paid  out  of 
the  sum  of  100?.  consols,  now  standing  in  my  name  at  the  Bank 
of  England,"  is  a  demonstrative  legacy.  Such  a  legacy  is  not 
liable  to  ademption  by  the  act  of  the  testator  in  his  lifetime;  for 
it  is  considered  to  be  the  testator's  intention  that  the  legatee 
should  at  all  events  have  the  legacy;  but  that  it  should,  if  possi- 
ble, be  paid  out  of  the  fund  he  has  pointed  out.  K,  therefore,  the 
testator  in  this  case  should  sell  the  100?.  consols  in  his  lifetime, 
the  50?.  will  still  be  payable  to  the  legatee  out  of  the  general  as- 
sets. (/)  A  demonstrative  legacy  is  accordingly  more  beneficial  to 
the  legatee  than  a  specific  legacy.  And  it  is  also  more  beneficial 
than  a  legacy  which  is  merely  general ;  for  being  payable  out  of 
a  specific  fund,  it  is  not,  while  that  fund  exists,  liable  to  abate- 
ment with  the  general  legacies.(^)  A  general  legacy  is  one  pay- 
able only  out  of  the  general  assets  of  the  testator,  and  is  liable 
to  abatement  in  case  of  a  *deficiency  of  such  assets  to  pay  r:j;q-|o-| 
the  testator's  debts  and  other  legacies.  A  bequest  to  A.  ^ 
of  100?.  sterling  is  a  general  legacy;  so  is  a  bequest  of  100?.  con- 
sols, without  referring  to  any  particular  stock  to  which  the  testa- 
tor may  be  entitled.(/i)  A  bequest  of  a  mourning  ring,  of  the 
value  of  10?.,  is  also  a  general  legacy,  no  specific  ring  of  the  tes- 
tator's being  referred  to.(i)  In  the  two  last  cases,  the  executor 
would  be  bound  to  set  apart  or  buy  the  stock,  or  purchase  the 
ring  for  the  legatee  out  of  the  general  assets  of  the  testator,  sup- 
posing them  sufficient  for  the  purpose;  and  should  there  be  a 
deficiency,  the  amount  of  the  stock,  or  the  value  of  the  ring  to 
be  purchased  would  abate  proportionably.  If,  however,  any  leg- 
acy should  be  given  for  a  valuable  consideration,  it  "nail  not  be 
liable  to  abatement  with  the  other  general  legacies.  An  example 
of  this  exception  to  the  usual  rule  occurs  in  the  case  of  legacies 
given  by  husbands  to  their  wives  in  consideration  of  their  releas- 
ing their  dower.(/t)     And. by  the  act  for  the  amendment  of  the 

(e)   As-hburner  v.  McGuire,  2  Bro.  C.  C.  108. 

(/)   Roberts  v   Pocock,  4  Ves.  150 ;  Attwater  v.  Attwater,  18  Beav.  330. 
ig)  Acton  V.  Acton,  1  Meriv.  178;  Livesay  v.  Redfern,  2  Y.  &  C.  90. 
(A)   Wilson  V.   Brownsmith,   9  Ves.   180.     See,  however,   Townsend  v.  Martin,   7  Ilare, 
471,  q,i.  ? 

(i)   1  Roper  on  Legacies,  c.  3,  a.  2. 

(/.)   Burridge  v.  Bradyl,  1  P.  Wms.  127  ;  Norcott  v.  Gordon,  14  Sim.  258. 


448 


OF    PERSONAL   ESTATE    GENERALLY. 


law  relating  to  dowcr,(?)  it  is  provided(m)  that  nothing  therein 
contained  shall  interfere  with  any  rule  of  equity  or  of  any  eccle- 
siastical court,  by  which  legacies  bequeathed  to  widows  in  satis- 
faction of  dower  are  entitled  to  priority  over  other  legacies. 

"When  a  legacy  is  bequeathed  by  a  testator  to  his  creditor,  it  is 
considered  to  be  a  satisfaction  of  the  debt,  if  the  legacy  be  equal 
to  or  greater  than  the  amount  of  the  dcbt.(??)^     But  if  it  be  less 

(/)   Stat.  3  A  4  Will.  IV,  c.  105.  (m)  Sect.  12. 

(«)   Fowler  v.  FovTler,  .3   P.  Wms.   353  ;  Fourdrin  v.  Gowdey,    3   M.  &  K.   383,   409  ;  2 
Koper  on  Legacies,  c.  17,  s.  1 1  Edmonds  v.  Low,  3  Kay  &  J.  318. 


1  A  legacy  will  not  be  a  satisfaction  of  the 
testator's  debt,  unless  it  was  so  intended.    In 
the  ease  of  Byrne  et  al.  v.  Byrne  et  al.,  Exrs., 
5  Serg.  &  Raw.  R.  54,  Judge  Yeates,  in  de- 
ciding this  principle,  uses  the  following  lan- 
guage:    "A  rule  has  prevailed,  that  when- 
ever a  person,  by  his  will,  gives  a  legacy  as 
great,  or  greater  than  the  debt  he  owes  to  the 
legatee,  such  legacy  shall  be  a  satisfaction  of 
the  debt,    on  the  presumption  that   a   man 
must   be   intended  to   be  just    before   he   is 
bountiful,   and  that  his  intent   is   to   pay  a 
debt,   and   not  to  give   a  legacy.     The   rule 
itself  is  not  founded   in    reason,   and   often 
tends  to  defeat  the  bounty  of  testators  ;  and 
able  chancellors  have  thought  it  more  agree- 
able to  equity,  to  construe  a  testator  to  be 
both  just  and  generous,  where  the  interest  of 
third  persons  are  not  affected.     And  courts 
of  justice  will  now  lay  hold  of  slight  circum- 
stances to  get  rid  of  the  rule.     Legacies  are 
considered  as  gratuities,  and  are  always  con- 
strued favorably.     If  they  be  less  than  the 
sum  due,  payable  on  a  contingency,  or  a  fu- 
ture day,  on  these,  and  t/ie  like  rircicmstatices, 
they  will  be  construed  as  additional  bounties, 
and  not  as  satisfactions.     And,  although  the 
contingency   does  not  actually   happen,   and 
the  legacy  thereby  becomes  due,  yet  it  shall 
not  go  in  satisfaction  of  the  debt,  because  a 
debt  which  is  certain,  stiall  not  be  merged  or 
lost  by  an  uncertain  and  contingent  recom- 
pense.    For,  whatever  is  to  be  a  satisfaction 
of  a  debt,  ought  to  be  so  171  its  creatioti,  and 
at  the  very  time  it  is  given,  which  such  con- 
tingent provision  is  not.   .   .   .     According  to 
the  most  modern  decisions,   it  is  presumed, 
that  the  legacy  must  be,  in  ail  respects,  ejus- 
deni  generis,  to  cause  a  satisfaction,  of  the 


debt,  and  an  apparent  intention,  m  the  will, 
that  the  testator  meant  it  as  such."     See, 
also,  to  the  same  effect.  Smith,  E.xr. ,  v.  Mar- 
shall,  1  Root's  R.  159;  Strong  v.  Williams, 
Exr.,  12  Mass.  R.  392  ;  Williams  v.  Crary,  5 
Cow.  R.  370,  S.  C.  8  Id.  246,  and  4  Wend.  R. 
449;   Byrne  et  al.  v.  Byrne  et  al.,  Exrs.,  5 
Serg.  &  Raw.  R.  64;  Edelen's  Exrs.  v.  Dent's 
Admrs.,  2  Gill   &  Johns.  R.   185;   Fitch  v. 
Peckham,  Exrx.,  16  Vt.  R.  151  ;  Perry,  Exr., 
V.  Maxwell,  Exrx.,  2  Dev.  E.  R.  488  ;  Stagg 
V.  Beekman,  2  Edw.  C.  R.  89  ;  Van  Riper  et 
al.  V.  Van  Riper  et  al.,  Exrs.,    1  Green's  C. 
R.  1  ;  Ward,  Exr.,  v.  Coffield,    1  Dev.  E.  R. 
108  ;  Dey  v.  Williams  et  al.,   2  Dev.  &  Bat. 
E.  R.  66  ;  Ladson  et  al.  v.  Ward  et  al.,  Exrs., 
1  Desauss.  R.  315  ;  Caldwell's  Exr.  v.  Kink- 
head  et  al.,    1   B.    Mon.    R.   230;    Cloud  v. 
Clinkehbeard's   Exrs.,    8    B.    Mon.    R.   398; 
Waters  v.  Howard  et  al.,  1  Md.  C.  Decs.  112. 
Nor  is  a  legacy  by  a  creditor  to  his  debtor, 
prima  facie,   a  discharge  or  release   of  his 
debt ;  and  the  debt  may  be  set  off  by  the  ex- 
ecutor, against  the  legacy  ;  Strong's  Exr.  v. 
Bass  et  al.,  35  Pa.  St.  R.   333;   but,  if  the 
will,  or  the  declarations  of  the  testator,  be- 
fore, at,  or  after  the  making  of  the  will,  show 
that  such  was  his  intention,  the  law,  always, 
if  possible,  favoring  the  wishes  of  the  dece- 
dent, will  construe  in  accordance  with  that 
intention  ;   Clark  v.  Bogardus,  12  AVend.  R. 
67  ;   Ricketts  v.   Livingston,  Exr.,   2  Johns. 
Gas.  97 ;  Sorelle's  Exrs.  v.  Sorelle,  5  Ala.  R. 
245  ;  Stagg  v.  Beekman,   2  Edw.  C.  R.  89  ; 
Zeigler  et  al.,  Exrs.,  v.  Eckhart,  6  Pa.  St. 
R.  13  ;  Lewis  v.  Thompson,  2  Richard.  E.  R. 
75  ;  Gallego  v.  Gallego's  Exr.,  2  Brockenb. 
R.  291. 


OF   A   WILL.  449 

than  tlie  debt,(o)  or  ^payable  at  a  difterent  t\me,{p)  or  of  a  r^q-iQ-i 
different  nature  from  the  debt,(5')  or  if  the  debt  be  con-  ^  -^ 
tracted  subsequently  to  the  date  of  the  will,(?^)  or  if  the  will  con- 
tain an  express  direction  for  payment  of  debts  and  legacies,(s) 
the  legacy  will  not  be  a  satisfaction.  The  leaning  of  the  courts  is 
against  the  doctrine  of  the  satisfaction  of  debts  by  legacies,  a 
doctrine  which  seems  to  have  been  established  on  rather  ques- 
tionable grounds.  When,  however,  a  sum  of  money  is  due  to  a 
child  by  way  of  portion,  the  inclination  of  the  courts  is  against 
double  portions ;  and  a  legacy  to  such  a  child  is  accordingly  re- 
garded as  a  satisfaction  of  the  portion  either  in  part  or  in  whole, 
notwithstanding  such  legacy  may  be  less  than  the  portion,  or 
payable  at  a  different  period.(<)  A  bequest  of  the  residue,  or  of 
a  share  in  the  residue,  of  the  testator's  estate,  will  also  be  consid- 
ered as  a  satisfaction  _^,)ro  tanto.{u)  The  presumption  of  satisfaction 
is  indeed  so  strong,  that  it  is  difficult  to  say  what  circumstances 
of  variation  between  the  portion  and  the  legacy  will  be  sufficient 
to  entitle  the  child  to  both. 

By  a  statute  of  George  the  Second,  commonly  called  the  Mort- 
main AQ.t,{x)  no  hereditaments,  nor  any  money,  stock  in  the  pub- 
lic funds,  or  other  personal  estate  whatsoever  to  be  laid  out  in 
the  purchase  of  hereditaments,  can  be  conveyed  or  settled  for 
any  charitable  uses  (with  a  few  exceptions),  otherwise  than  by 
deed,  with  certain  *formalities  mentioned  in  the  act.(7/)  r^^ooA-i 
And  all  gifts  of  hereditaments,  or  of  any  estate  or  interest 
therein,  or  of  any  charge  or  incumbrance  affecting  or  to  affect 
any  hereditaments,  or  of  any  personal  estate  to  be  laid  out  in  the 
purchase  of  any  hereditaments,  or  of  any  estate  or  interest  therein, 

(o)  Graham  v.  Graham,  1  Ves.  Sen.  262. 

{p)  Nicholls  V.  Judson,  2  Atk.  300  ;   Hales  v.  Darell,  .3  Beav.  324. 

(q)  Alleyn  v.  Alleyn,  2  Ves.  Sen.  37  ;  Bartlett  v.  Gillard,  3  Russ.  149  ;  Fourdrin  v.  Qow- 
dey,  3  M    &  K.  383,  409. 

()■)  Cranmer's  Case,  2  Salk.  508. 

(s)  Richardson  v.  Greese,  3  Atk.  65  ;  Hassell  v.  Hawkins,  4  Drew.  468. 

(0  HinchclifiFe  v.  Hinchcliffe,  3  Ves.  516  ;  Weall  v.  Rice,  2  Russ.  &  Myl.  251. 

{u)  Rickinan  v.  Morgan,  2  B.  C.  C.  394  ;  Earl  of  Glengall  v.  Barnard,  1  Keen,  769  ; 
affirmed  2  H.  of  L.  Cas.  131  j  Beckton  v.  Barton,  27  Beav.  99,  106  j  Montefiore  v.  Guedella, 
1  ne  Gex;  F.  &  J.  93. 

{x)  Stat.  9  Geo.  II,  c.  36,  s.  1. 

(y)  See  Principles  of  the  Law  of  Real  Property,  55,  1st  ed.  ;  58,  2d  ed. ;  60,  3d  &,  4th 
eds.  j  63,  5th  ed.  ;  65,  6th  ed. 

29 


450  OF    PERSONAL   ESTATE   GENERALLY. 

or  of  any  charge  or  incumbrance  aftecting  or  to  affect  the  same, 
to  or  in  trust  for  any  charitable  uses  whatsoever,  are  rendered 
void  if  made  in  any  other  form  than  by  the  act  is  directed. (2') 
This  act  has  been  very  strictly  construed,  and  has  been  held  to 
prohibit  the  bequest  for  charitable  purposes  of  personal  estate  in 
any  degree  savoring,  as  it  is  said,  of  the  realty.  Thus,  it  has 
been  decided  that  money  secured  on  mortgage  of  real  estate,(«) 
shares  in  a  canal  navigation, (6)  and  leasehold  estates, (c)  cannot  be 
left  by  will  for  any  charitable  purpose.  But  more  recently,  the 
strictness  of  the  courts  appears  to  have  relaxed;  and  it  has  lately 
been  held  that  money  secured  by  a  policy  of  assurance,  although 
the  company  may  invest  their  funds  in  real  estates,((i)  and  shares 
in  a  banking  company  authorized  to  invest  money  on  mortgage 
of  real  estates,(c)  or  in  a  mining  company, (/)  are  not  within  the 
statute.  So  railway  scrip, (^^)  and  shares  in  gas  companies,(A) 
docks,  railways,  and  canals, («)  although  such  shares  may  not  be 
r-.^^--,  *expresslv  declared  by  the  acts   establishino;  the  under- 

r  3211      i      .-'  ./  o  ^ 

^  "  -*  takings  to  be  personal  estate,  are  now  held  to  be  unaifect- 
ed  by  the  statute.  But  debentures,  by  which  such  undertakings 
with  their  rates  and  tolls  are  mortgaged,  have  been  held  to  be 
within  the  act  •,{k)  though  such  debentures  as  are  mere  bonds  or 
covenants  to  pay  money,  and  not  mortgages,  are  clearly  unaffect- 
ed by  it.(^)  With  regard  to  the  bequest  of  money  to  be  laid  out 
in  the  purchase  of  hereditaments,  it  has  been  decided  that  a  be- 
quest of  money  to  be  laid  out  in  building  on  land  already  in 
mortmain  is  good ;(??!)  but  if  some  land  already  in  mortmain  be 
not  distinctly  referred  to,  a  bequest  of  money  for  building  for 

(2)   Sect.  3. 

(a)   Attorney-General  v.  Meyrick,  2  Ves.  Sen.  44. 

{b)   Howse  V.  Chapman,  4  Ves.  542. 

(c)  Attorney-General  v.  Graves,  Amb.  155. 

(d)  March  v.  Attorney-General,  5  Beav.  433. 

(e)  Ashton  v.  Lord  Langdale,  4  De  Gex  &  Smale,  402  ;  S.  C.  15  Jur.  868  ;  Myers  v.  Peri- 
gal,  2  De  Gex,  Mac.  &  Gord.  599. 

(/)  Hayter  v.  Tucker,  4  Kay  &  J.  243.     See  Morris  v.  Glynn,  27  Beav.  218. 

{g)   Ashton  V.  Lord  Langdale,  iibi  svpra. 

(/t)   Thompson  v.  Thompson,  1  Coll.  381  ;  Sparling  v.  Parker,  9  Beav.  450. 

{i)  Hilton  V.  Giraud,  1  De  Gex  &  Smale,  183 ;  Sparling  v.  Parker,  lebi  supra  ;  Walker  v. 
Milne,  11  Beav.  507;  Ashton  v.  Lord  Langdale,  iibi  svpra  ;  Edwards  v.  Hall,  6  De  Gex,  M. 
&  G.  74;   Linley  v.  Taylor,  1  GiflF.  67;  affirmed,  2  De  Gex,  F.  &  J.  84. 

(/,)   Ashton  V.  Lord  Langdale,  ubi  supra ;  Re  Langham's  Trust,  10  Hare,  446. 

(/)  Ashton  V.  Lord  Langdale,  ubi  supra. 

{m)  Glubb  V.  Attorney-General,  Amb.  373. 


OF   A   WILL.  •  451 

any  charitable  purpose  will  be  void,  as  implying  a  direction  for 
the  purchase  of  land  on  which  to  bnild.(/i)  And  it  has  also  been, 
held  that  a  gift  is  void  which  tends  directly  to  bring  fresh  lands 
into  mortmain,  as  a  gift  of  money  to  a  charity  on  condition  that 
other  persons  provide  the  land.(o)  This,  however,  has  been  over- 
ruled.(j^)  And  if  the  purchase  of  land  be  not  involved  in  the 
gift,  there  is  no  law  which  prevents  the  bequest  of  purely  per- 
sonal property  to  any  amount  for  charitable  purposes.^  A  be- 
quest to  a  charity  ought,  therefore,  to  be  directed  to  be  paid  out 
of  such  part  of  the  testator's  personal  estate  as  he  may  lawfully 
bequeath  for  such  a  purpose.  For  if  this  precaution  should  be 
neglected,  the  charitable  legacies  will  fail  in  the  proportion  which 
the  personal  assets  savoring  of  the  realty  may  bear  to  those 
which  are  purely  personal.(g) 

*Other  bequests  which  require  some  care  are  those  to  r:i:q99-i 
illegitimate  children.  It  is  very  doubtful  whether  a  be-  L  *"  J 
quest  to  the  future  illegitimate  children  of  a  particular  woman 
is  not  void  as  tending  to  encourage  immorality. (r)  And  it  is 
certain  that  a  bequest  to  the  future  illegitimate  children  of  a 
particular  man  is  void,  as  the  courts  cannot  enter  into  the  in- 
quiry which  w^ould  be  necessary  to  identify  such  children. (s)  A 
child  prima  facie  means  a  legitimate  child;  a  bastard  is  con- 
sidered by  the  law  as  nullius  Jilius.     Accordingly,  an  illegitimate 

(;?)   Pritcliard  v.  Arbouin,  3  Russ.  456  ;   Smith  v.  Oliver,  11  Beav.  481. 

(o)  Attorney-General  v.  Davies,  9  Ves.  535  ;  Mather  v.  Scott,  2  Keen,  172;  Trye  v.  Cor- 
poration of  Gloucester,  14  Beav.  173. 

(p)   Philpott  V.  St.  George's  Hospital,  6  H.  of  L.  Gas.  338. 

(q)  Attorney-General  v.  Tyndall,  2  Eden,  207  ;  S.  C,  2  Amb.  614  ;  Hobson  v.  Black- 
burn, 1  Keen,  273  ;  Philanthropic  Society  v.  Kemp,  4  Beav.  581  ;  and  see  Robinson  v.  Gel- 
dard,  3  Mac.  &  Gord.  735  ;  Tempest  v.  Tempest,  7  De  Gex,  Mac.  &  Gord.  470. 

(r)   See  2  Jarm.  Wills,  153  ;   202,  2d  ed. ;  204,  3d  ed. 

(s)   Wilkinson  v.  Adams,  1  Ves.  &  Beames,  466. 

1  By  the  11th  section  of  an  act  of  the  leg-  and,  at  the  time,  disinterested  witnesses,  at 
islature  of  Pennsylvania  (commonly  called  the  least  one  calendar  month  before  the  decease 
"Price  Act,"  from  the  name  of  its  originator),  of  the  testator  or  alienor;  and  all  disposi- 
passed  20th  April,  1855,  it  is  provided,  that  tions  of  property  contrary  hereto,  shall  be 
"No  estate,  real  or  personal,  shall  hereafter  void,  and  go  to  the  residuary  legatee  or  de- 
be  bequeathed,  devised,  or  conveyed,  to  any  visee,  ne.xt  of  kin,  or  heirs,  according  to 
body  politic,  or  to  any  person,  in  trust  for  re-  law,"  etc.  Purd.  Dig.  (1801),  p.  1018,  sec. 
ligious  or  charitable  uses,  except  the  same  be  22. 
done  by  deed  or  will,  attested  by  two  credible, 


452  OF  PERSONAL  ESTATE  GENERALLY. 

child  can  never  take  under  a  gift  to  children,  unless  it  be  clear, 
upon  the  terms  of  the  will,  or  according  to  the  state  of  facts  at 
the  making  of  it,  that  legitimate  children  never  could  have 
taken. (<)  An  illegitimate  child  may,  however,  take  under  any 
gift  in  which  he  is  sufficiently  identified  as  the  object  of  the  tes- 
tator's bounty.  Thus,  a  bequest  to  the  child  of  which  a  woman 
is  now  pregnant  is  good.{u)  And  if  illegitimate  children  have 
acquired  the  reputation  of  being  the  children  of  the  testator  or 
any  other  person,  and  it  appear  by  necessarj^  implication  on  the 
face  of  the  will  that  such  persons  were  intended  in  a  bequest  to 
children,  they  will  be  entitled,  not  on  account  of  their  being 
children,  but  on  account  of  their  reputation  as  such.(x) 

After  payment  of  the  testator's  debts  and  legacies,  the  residue 
of  his  personal  estate  must  be  paid  over  to  the  *residuary 
'-  -'  legatee,  if  any,  named  in  the  will.  A  will  of  personal 
estate  has  always  been  considered  as  speaking  from  the  death  of 
the  testator;  and  it  is  now  expressly  enacted,  that  every  will  shall 
be  construed,  with  reference  to  the  real  and  personal  estate  com- 
prised in  it,  to  speak  and  take  effect  as  if  it  had  been  executed 
immediately  before  the  death  of  the  testator,  unless  a  contrary 
intention  shall  appear  by  the  will.(?/)  Hence,  it  follows  that  all 
personal  property  acquired  by  the  testator  between  the  time  of 
making  his  will  and  his  decease  will  pass  under  it.  If  any 
legacy  should  lapse  by  the  death  of  the  legatee  in  the  testator's 
lifetime,  or  should  fail  from  being  contrary  to  law,  it  will  fall 
into  the  residue,  and  belong  to  the  residuary  legatee.  And  a 
legacy  will  lapse  by  the  death  of  the  legatee  in  the  testator's 
lifetime,  although  given  to  the  legatee,  his  executors,  adminis- 
trators, and  assigns,(2:)  for  these  words  are  merely  inserted  in 
analogy  to  the  limitation  of  real  estate  to  a  man  and  his  heirs. 
If  a  bequest  be  made  to  two  or  more  as  joint  tenants,  and  one  of 
tbem  die  in  the  lifetime  of  the  testator,  his  share  will  not  lapse, 

{t)  Cartwrigbt  v.  Vawdry,  5  Ves.  530  ;  Godfrey  v.  Davis,  6  Ves.  43  ;  Harris  v.  Lloyd,  1  T. 
&  Russ.  310  ;  Bagley  v.  Mollard,  1  Russ.  &  M.  581 ;  Dover  v.  Alexander,  2  Hare,  275  ;  Re 
Overhill's  Trust,  1  Sm.  &  Giff.  362. 

{u)  Gordon  v.  Gordon,  1  Meriv.  141. 

(x)  Wilkinson  v.  Adam,  1  Ves.  &  B.  422  ;  Gill  v.  Shelley,  2  Russ.  &  My.  336  :  Meredith 
V.  Farr,  2  You.  &  Coll.  525. 

(y)  Stat.  7  Will.  IV  &  1  Vict.  c.  26,  s.  24. 

{z)   Elliott  V.  Davenport,  1  P.  Wms.  83. 


OF    A   WILL.  453 

but  will  survive  to  the  others. (a)  But  if  the  bequest  be  to  two 
or  more  iu  common,  and  one  of  them  die  in  the  testator's  life- 
time, his  share  will  lapse ;(6)  unless  the  bequest  be  made  to  a 
class,  as  to  the  children  of  A.  in  equal  shares,  in  which  case  all 
who  answer  that  description  at  the  testator's  decease,(c)  and  also 
(if  the  period  of  distribution  be  postponed  by  the  will)  all  who 
come  into  being  before  such  period,(c?)  will  be  entitled  to  divide 
the  bequest  *amongst  them.  It  is,  however,  provided  by  r>i. 09^-1 
the  recent  act  for  the  amendment  of  the  laws  with  respect 
to  wills,  that  where  any  person,  being  a  child  or  other  issue  of 
the  testator,  to  whom  any  personal  estate  shall  be  bequeathed 
for  any  interest  not  determinable  at  or  before  the  death  of  such 
person,  shall  die  in  the  testator's  lifetime  leaving  issue,  and  any 
such  issue  shall  be  living  at  the  death  of  the  testator,  such  be- 
quest shall  not  lapse,  but  shall  take  eflect  as  if  the  death  of  such 
person  had  happened  immediately  after  the  death  of  the  testator, 
unless  a  contrary  intention  shall  appear  by  the  will.(e)^     The 

(ff)   Morley  v.  Bird,  3  Ves.  628,  631. 

{b)  Bagwell  v.  Dry,  1  P.  AVms.  700  ;  Page  v.  Page,  2  P.  Wms.  489  ;  Barber  v.  Barber,  3 
My.  &  Craig,  688  ;  Bain  v.  Lesher,  11  Sim.  397. 

(c)  Viner  v.  Francis,  2  Cox,  190  ;  2  Jarm.  Wills,  74;  126,  2d  ed.  ;  142,  3d  ed.  j  Lee  v. 
Pain,  4  Hare,  250. 

(d)  Ayton  V.  Ayton,  1  Cox,  327;  2  Jarm.  Wills,  75  ;   127,  2d  ed.  ;   143,  3d  ed. 

(e)  Stat.  7  Will.  IV  &  1  Vict.  c.  26,  s.  33. 

1  Statutes  resembling  this  provision,  are  in  lineal  descendant  of  any  testator,  shall  be 
force  in  most  of  the  States  of  the  Union  ;  but  deemed  or  held  to  lapse,  or  become  void,  by 
in  many  of  them,  these  enactments  are  more  reason  of  the  decease  of  such  devisee  or  lega- 
comprehensive  than  those  prescribed  by  the  tee,  in  the  lifetime  of  the  testator,  if  such  de- 
laws  of  England,  including  devises  as  well  as  visee  or  legatee  shall  leave  issue  surviving  the 
legacies  within  the  letter  of  the  acts,  and  em-  testator  ;  but  such  devise  or  legacy,  shall  be 
bracing  other  than  lineal  descendants.  Thus,  good  and  available  in  favor  of  such  surviving 
in  New  Hampshire,  "The  heirs  in  the  descend-  issue,  with  like  effect  as  if  such  devisee  or 
ing  line,  of  any  devisee  or  legatee  deceased  legatee  had  survived  the  testator,  saving  al- 
before  the  testator,  shall  take  the  estate  de-  ways  to  every  testator  the  right  to  direct 
vised  or  bequeathed,  in  the  same  manner  the  otherwise.  No  devise  or  legacy  hereafter 
legatee  or  devisee  would  have  taken  the  same,  miide  in  favor  of  a  brother  or  sister,  or  the 
if  he  had  survived."  N.  II.  Compil.  Stats,  children  of  a  deceased  brother  or  sister  of  any 
(1853),  pp.  400,  401,  sec.  11.  The  same  is  testator,  such  testator  not  leaving  any  lineal 
true  of  the  laws  of  Pennsylvania,  which  also  de.scendants,  shall  be  deemed  or  held  to  lapse, 
contain  provisions  in  favor  of  brothers  and  or  become  void,  by  reason  of  the  decease  of 
sisters  and  their  children,  as  regards  such  such  devisee  or  legatee,  in  the  lifetime  of  the 
devises  or  legacies  ;  as  will  be  seen  by  a  ref-  testator,  if  such  devisee  or  legatee  shall  leave 
erence  to  Purd.  Big.  (1861),  p.  1017,  sees.  14  issue  surviving  the  testator  ;  but  such  devise 
and  15,  which  are  in  these  words  :  "No  de-  or  legacy,  shall  be  good  and  available  in  favor 
vise  or  legacy  in  favor  of  a  child,  or  other  of  such  surviving  issue,  with  like  eflect  as  if 


454 


OF    PERSONAL   ESTATE   GENERALLY. 


effect  of  this  provision  is  curious.  If  the  legatee  had  died  im- 
mediately after  the  testator,  leaving  a  wall,  it  is  evident  that  the 
estate  bequeathed  to  him  would  have  passed  under  his  will.  It 
has  been  decided,  therefore,  that  the  will  of  the  legatee  shall, 
after  his  death,  operate  on  the  estate  bequeathed  to  him  in  the 
same  manner  as  if  he  had  been  liviiig.(/)  This  provision  has 
been  held  to  apply  to  a  testamentary  appointment  under  a  general 
power  of  appointment,(_^)  but  to  be  inapplicable  to  a  testamen- 
tary appointment  under  a  power  to  appoint  amongst  the  testator's 
children.  (A) 

If  there  were  no  residuary  legatee,  the  residue  of  the  testator's 
personal  estate,  after  payment  of  debts  and  legacies,  formerly 


{/)  Johnson  v.  Johnson,  3  Hare,  157. 
(g)  Eccles  V.  Cheyne,  2  Kay  &  J.  676. 


(70   Griffiths  v.  Gale,  12  Sim.  364. 


such  devisee  or  legatee  had  survived  the  tes- 
tator, saving  always  to  every  testator  the 
right  to  direct  otherwise." 

In  Georgia,  it  is  enacted,  that  "  From  and 
after  the  passage  of  this  act,  where  any  per- 
son named  as  legatee  in  the  will  of  anj'  other 
person,  shall  die  before  the  testator,  leaving 
issue  that  .<hall  be  alive  at  the  death  of  such 
testator,  the  legacy,  provided  the  same  be 
absolute,  and  without  remainder  or  limita- 
tion, shall  not  lapse  as  heretofore,  but  shall 
vest  in  such  issue."  T.  R.  R.  Cobb's  New 
Dig.  of  the  Ls.  of  Geo.  (1851),  vol.  i,  p.  348, 
sec.  194. 

In  some  of  the  States,  it  is  provided  in  ad- 
dition to  what  has  been  already  stated,  that 
the  devise  or  legacy  so  left  to  a  legatee  or 
devisee  who  has  died,  shall  go  to  his  child  or 
children,  as  if  he  had  died  intestate;  and  in 
New  Jersey,  it  is  expressly  said,  that  this 
shall  be  the  case,  even  where  the  deceased 
devisee  or  legatee  has  left  a  will  ;  for,  to  quote 
the  words  of  the  act,  "Whensoever  any  es- 
tate of  any  kind,  shall  or  may  be  devised  or 
bequeathed,  by  the  testament  and  last  will  of 
any  testator  or  testatrix,  to  any  person  being 
a  child  or  other  descendant  of  such  testator 
or  testatrix,  and  such  devisee  or  legatee  shall, 
during  the  life  of  such  testator  or  testatrix, 
die  testate  or  intestate,  leaving  a  child  or 
children,   or  one   or  more  descendants  of  a 


child  or  children  who  shall  survive  such  tes- 
tator or  testatrix,  in  that  case,  such  devise  or 
legacy  to  such  person  so  situated  as  above 
mentioned,  and  dying  in  the  lifetime  of  the 
testator  or  testatrix,  shall  not  lapse,  but  the 
estate  so  devised  or  bequeathed,  shall  vest  in 
such  child  or  children,  descendant  or  de- 
scendants, of  such  legatee  or  devisee,  in  the 
same  manner,  as  if  such  legatee  or  devisee 
had  survived  the  testator  or  testatrix,  and 
had  died  intestate,"  &c.  Nixon's  Dig.  of  the 
Ls.  of  N.  J.,  pp.  916,  917,  sec.  22. 

J?or  such  differences  as  have  been  noticed, 
existing  between  the  statutes  of  the  several 
States,  see  Rev.  Stats.'  of  Vt.  (1839),  pp. 
257,  258,  sec.  28  ;  Stats,  of  S.  C,  vol.  v,  p. 
107,  see.  9  ;  Ls.  of  Tenn.  (Supplem.  1846),  p. 
147,  sec.  3  ;  Dig.  of  the  Stats,  of  Ark.,  p. 
991,  sec.  14;  How.  &  Hutch.  Stat.  Ls.  of 
Missi.,  p.  386,  sec.  5  ;  Oldham  <fc  White's 
Dig.  of  the  Ls.  of  Texas,  p.  455,  see.  2120  ; 
Matthews's  Dig.  (Va.),  pp.  874,  875,  sec.  13  ; 
Rev.  stats,  of  N.  Y.  (5th  ed.),  vol.  iii,  p. 
146,  sec.  47  ;  Md.  Code,  vol.  i,  p.  686,  art. 
93,  sec.  304;  Rev.  Stats,  of  Maine  (1857),  p. 
454,  sec.  10  ;  Rev.  Code  of  N.  C.  (1855),  p. 
611,  sec.  28';  Rev.  Stats,  of  Wis.  (1858),  p. 
581,  sec.  29  ;  2  Compil.  Ls.  of  Mich.  (1857), 
p.  868,  see.  28  ;  Rev.  Stats,  of  R  I.  (1857), 
p.  358,  sec.  12  ;  Gen.  Stats  of  Mass.  (1860), 
p.  479,  sec.  28. 


OF   INTESTACY.  455 

belonged  to  the  executor,  for  his  own  benefit,  unless  a  contrary 
intention  appeared  from  his  being  left  executor  in  trust,(?)  or 
from  his  having  a  legacy  left  him  for  his  trouble, (J)  or  from 
other  circumstances. (A')  But  by  a  modern  statute, (/)  it  is  en- 
acted, *that  when  any  person  shall  die,  having  by  will  or  r-^c,c>r-, 
codicil  appointed  any  executor,  such  executor  shall  be  *"  -^ 
deemed  by  courts  of  equity  to  be  a  trustee  for  the  person  or 
persons  (if  any)  who  would  be  entitled  to  the  estate  under  the 
Statute  of  Distributions,  in  respect  of  any  residue  not  expressly 
disposed  of,  unless  it  shall  appear  by  the  will  or  any  codicil 
thereto, (m)  -that  the  person  so  appointed  executor  was  intended 
to  take  such  residue  beneficially.  The  Statute  of  Distributions 
is,  that  under  which  the  personal  estate  of  any  one- dying  intes- 
tate is  distributed  between  his  widow  and  next  of  kin.  An 
account  of  this  statute  will  be  found  in  the  next  chapter. 


*CH AFTER    IV.  [*326] 

OF    INTESTACY. 

The  ecclesiastical  courts  until  recently  had  jurisdiction  not  only 
over  the  wills  of  testators,  but  also  over  the  goods  of  persons 
dying  intestate.  This  jurisdiction,  though  of  long  standing,  ap- 
pears to  have  been  at  first  gradually  acquired.  In  early  times 
the  clergy,  being  possessed  of  almost  all  the  learning,  appear  to 
have  been  the  principal  framers  of  wills.  The  power  they  thus 
acquired  was  exercised  for  their  own  benefit,  ever}'  man  being 
expected,  on  making  his  will,  after  bequeathing  to  his  lord  his 
heriot,  in  the  next  place  to  remember  the  church. («)  If,  how- 
ever, a  man  should  have  died  intestate,  without  opportunity  of 
making  this  provision,  the  distribution  of  his  goods  devolved  on 
the  church,  together  with  his  friends,  the  lord  first  having  taken 

(i)    Pririg  V.  Print;,  2  Vern.  99  ;    Bii<;well  v.  Dry,  1  P.  Wins.  700. 

(j)   Udchfield  V.  Carele.s.s,  2  P.  Win.s.  158.  (/)    Stnt.  11  Geo.  IV  &  1  Will.  IV,  c.  40. 

(X)   Mullen  V.  Bowman,  1  Coll.  197.  (w)  Love  v.  Gaze,  8  Beav.  472. 

(a)   Glanville,  lib.  7,  c.  5  ;   Bract.  fiO  a;  Flela,  lib.  2,  c.  57. 


456  OF    PERSONAL   ESTATE   GENERALLY. 

his  lieriot.(/>)  The  wife  and  the  children  were  entitled  to  their 
shares;  and  that  part  of  the  goods  which  the  intestate  had  power 
to  dispose  of  by  his  will  (called  the  portion  of  the  deceased)  was 
applied  by  the  church  in  pios  usus.  This  application  to  pious 
uses  appears  to  have  been  as  follows  :  in  the  first  place,  the  be- 
quest, which  it  was  to  be  presumed  the  intestate  would  have 
made  to  the  church,  was  retained,  and  the  residue  was  then  dis- 
posed of  in  paying  the  debts  of  the  deceased,  and  distributed 
amongst  his  wife  and  children,  his  parents  and  their  relatives. 
That  this  was  the  case  appears  fi-ora  the  complaints  which  were 
made  by  the  clergy  of  those  days,  of  the  interference  of  the  tem- 
*poral  lords  in  cases  of  interstacy,  whereby  the  distribu- 
'-  -^  tion  of  the  effects  in  the  manner  pointed  out  was  pre- 
vented.(c')  The  clergy  themselves,  however,  do  not  appear  to 
have  been  always  free  from  blame;  for  they  are  accused  of 
having  frequently  taken  the  whole  of  the  intestate's  portion  to 
themselves,  making  no  distribution,  or  at  least  an  undue  one, 
amongst  the  creditors  and  relatives  of  the  deceased ;(c^  and  in 
order  to  remedy  this  evil,  it  was  enacted  in  the  reign  of  Edward 
I,  by  one  of  the  very  few  statutes  then  passed  relating  to  per- 
sonal estate, (e)  that  the  ordinary  should  be  bound  to  answer  the 
debts  of  an  intestate,  so  far  as  his  goods  would  extend,  in  the 
same  manner  as  the  executors  would  have  been  bounden  if  he 
had  made  a  testament.  The  right  of  the  creditor  was  thus 
clothed  with  a  remedy;  for,  under  this  statute,  an  action  at  law 
might  be  brought  by  the  creditor  against  the  ordinary  for  the 
payment  of  his  debt;(/)  but  the  right  of  the  relatives  to  the  sur- 
plus still  remained  undefined. 

The  duty  of  administering  intestate's  effects  was  not,  as  may 
be  supposed,  usually  performed  by  the  bishops  in  person.  For 
this  purpose  they  usually  appointed  an   administrator ;  but,  as 

(i)   Bract.  60  b  ;   Fleta,  vhi  supra. 

(c)  Matthew  Paris,  951,  Additamenta,  201,  204,  209  (Wats's  ed.  London,  1640)  ;  Consti- 
tutions of  Boniface,  Constitutiones  Provinciales,  20,  at  the  end  of  Lyndewood's  Provinciale 
(Oxen,  1679),  recited  also  in  a  Constitution  of  Archbishop  Stratford  (Lynd.  Prov.  lib.  3, 
tit.  13).  See  Gent  Mag.  New  Series,  vol.  ii,  355,  474.  See,  also,  Dyke  v.  Walford,  Privy 
Council,  12  Jurist,  839. 

{d)   Fleta,  lib.  2,  c.  57. 

(«)   Stat.  13  Edw.  I,  c.  19. 

(f)   1  Ro.  Abr.  906  ;  Bac.  Abr.  tit.  Executors  and  Administrators  (E). 


OF   INTESTACY.  457 

personal  property  rose  in  importance,  it  became  desirable  that 
this  administrator  should  not  be  considered  as  the  mere  agent  of 
the  bishop,  but  should  himself  have  a  locus  standi  in  the  king's 
courts.  It  was  accordingly  enacted  by  a  statute  of  the  reign  of 
Edward  ni,(_^)  that  where  a  man  died  intestate  the  *ordi-  r^^qno-i 
naries  should  depute  the  next  and  most  lawful  friends  of 
the  deceased  to  administer  his  goods,  which  persons  so  deputed 
should  have  action  to  demand  and  recover  as  executors  the  debts 
due  to  the  deceased,  to  administer  and  dispend  for  the  soul  of 
the  dead;  and  should  answer  also,  in  the  king's  courts,  to  others 
to  whom  the  deceased  was  holden  and  bound,  in  the  same  man- 
ner as  executors  should  answer.  By  a  subsequent  statute(A)  ad- 
ministration might  be  granted  to  the  widow  of  the  deceased,  or 
to  the  next  of  his  kin,  or  to  both,  as  by  the  discretion  of  the  or- 
dinary should  be  thought  good.  The  widow  was  usually  pre- 
ferred to  the  next  of  kin  in  the  grant  of  administration  ;(z)  and  a 
joint  grant  was  seldom  made,  so  seldom,  indeed,  that  the  powers 
of  co-administrators  appear  to  be  still  a  matter  of  doubt.(J)  In 
granting  administration  to  the  next  of  kin,  the  ecclesiastical 
courts  were  guided  by  the  right  to  the  property  to  be  adminis- 
tered.{A)  This  right  will  be  hereafter  explained.  If  none  of  the 
next  of  kin  would  take  out  administration,  a  creditor  might,  by 
custom,  do  so,  on  the  ground  that  he  could  not  be  paid  his  debt 
until  representation  were  made  to  the  deceased  ;(^  and  for  want 
of  creditors,  administration  might  be  granted  to  any  person  at 
the  discretion  of  the  court.(m)  But  the  Court  of  Probate  Act, 
1857, (w)  has  now  abolished  the  whole  of  the  jurisdiction  of  the 
ecclesiastical  courts  over  the  effects  of  intestates;  and  adminis- 
tration of  the  effects  of  deceased  persons  is  now  granted  by  that 
court  in  the  same  manner  as  the  probate  of  wills.(o)  And  after 
the  decease  of  any  person  intestate,  his  personal  estate  vests 
*in  the  judge  of  the  Court  of  Probate  for  the  time  being, 
until  letters  of  administration  are  granted,  in  the  same 

(g)  31  Edw.  Ill,  c.  11.  (h)   21  lien.  VIII,  c.  5. 

(/)  Webb  V.  Needham,  1  Addani.s,  494. 

(./)   Shep.  Touch,  48.5,  486  ;  Williaiu.s  on  Executors,  pt.  3,  bk.  1,  ch.  2. 

(/)   In  the  Goods  of  Gill,  1  Ilagg.  342. 

(/)   Webb  V.  Needham,  1  Addams,  494. 

(m)  Williams  on  Executors,  pt.  1,  bk.  5,  ch.  2,  s.  1. 

(«)   Stat.  20  &  21  Vict.  c.  77,  amended  by  stat.  21  &  22  Vict.  c.  95. 

(o)   Ante,  p.  307. 


[*329] 


458  OF   PERSONAL   ESTATE   GENERALLY. 

manner  and  to  the  same  extent  as  they  formerly  vested  in  the 
ordinary,  (py 

ip)  Stat.  21  &  22  Vict.  c.  95,  s.  19. 


1  In  the  State  of  New  York,  "  Administra-  nounee  tbe  administration,  they  shall,  if  resi- 

tion,  in  ease  of  intestacy,  shall  be  granted  to  dent  within  the  county,  be  cited  by  tbe  judge 

the  relatives  of  the  deceased,  who  would  be  for  that  purpose. 

entitled  to  succeed  to  his  personal  estate,  if  "  Secondly,  if  the  persons  so  entitled  toad- 

they,  or  any  of  them,  will  accept  the  same,  in  ministration,   are   incompetent,   or  evidently 

the  following  order:    First,   to    the  widow;  un.«uitable  for  the  discharge  of  the  trust,  or 

second,  to  the  children  ;  third,  to  the  father  ;  if  they  neglect,  without  any  suflBcient  cause, 

fourth,  to  the  brothers;  fifth,  to  the  si.sters  ;  for  thirty  days  after  the  death   of  tbe  intes- 

sixth,  to  the  grandchildren  ;  seventh,  to  any  tate,  to  take  administration  of  his  estate,  the 

other  of  the  nest  of  kin,  who  would  be  en-  judge  of  probate  shall  commit  it  to  one  or 

titled  to  share  in  the  distribution  of  the  es-  more  of  the   principal  creditors,  if  there  be 

tate.    Tf  any  of  the  persons,  so  entitled,  be  mi-  any  competent,  and  willing  to  undertake  the 

Eors,  administration  shall  be  granted  to  their  trust. 

guardians;  if  none  of  the  said  relatives  or  "Thirdly,  if  there  be  no  such  creditor,  the 

guardians  will  accept  the  same,  then  to  the  judge  shall  commit    administration   to    such 

creditors  of  the  deceased  ;   and  the  creditor  other  person  as  he  shall  think  fit ;  provided, 

first  applying,  if  otherwise  competent,   shall  however, 

be  entitled  to  a  preference;    if  no  creditor  "Fourthly,  that   if  the  deceased    were  a 

apply,  then,  to  any  other  person  or  persons  married  woman,  administration  of  her  estate 

legally  competent ;  but  in  the  city  of  New  shall  in  all  cases  be  granted  to  her  husband, 

York,   the   pub  ic    administrator  shall   have  if  competent  and  willing  to  undertake   the 

preference,  after  the  next  of  kin,  over  credit-  trust,  unless  she  shall,  by  force  of  a  marriage 

ors  and  all  other  persons.     And  in  the  case  of  settlement,    or    otherwise,  have    made    some 

a  married  woman  dying  intestate,  her  bus-  testamentary  disposition   of  her  separate  es- 

band  shall   be  entitled  to  administration,  in  tate,   or   some  other  provision,    which    shall 

preference   to  any   other  person,    as  herein-  render  it  necessary  or  proper  to  appoint  some 

after  provided.  other   person  to   administer  her  estate  ;   and 

"  Where  there  shall  be  several  persons,  of  provided,  also, 
the  same  degree  of  kindred  to  the  intestate,  "Fifthly,  that  if  the  deceased  leaves  no 
entitled  to  administration,  they  shall  be  pre-  widow  or  next  of  kin  in  this  State,  adminis- 
ferred  in  the  following  order  :  First,  males  to  tration  of  his  estate  shall  be  granted  to  a 
females  ;  second,  relatives  of  the  whole  blood,  public  administrator  in  preference  to  credit- 
to  those  of  the  half  blood  ;  third,  unmarried  ors  ;"  Gen.  Stats,  of  Mass.  (18G0)  p.  483,  §  1. 
women,  to  such  as  are  married;  and  ♦when  In  Pennsylvania,  "Whenever  letters  of 
there  are  several  persons  equally  entitled  to  administration  are  by  law  necessary,  the 
administration,  the  surrogate  may,  in  his  dis-  register  having  jurisdiction  shall  grant  them 
cretion,  grant  letters  to  one  or  more  of  such  in  such  form  as  the  case  shall  require,  to  th® 
persons;"  3  Rev.  Stats,  of  N.  Y.  (5th  ed.),  widow,  if  any,  of  the  decedent,  or  to  such  of 
pp.  158,  159,  sees.  27  and  28.  his    relations  or  kindred,  as  by  law  may  be 

In  Massachusetts,  "Administration  of  the  entitled  to  the  residue  of  his  personal  estate, 
estate  of  an  intestate,  shall  be  granted  to  or  to  a  share  or  shares  therein  after  payment 
some  one  or  more  of  the  persons  hereinafter  of  his  debts,  or  he  may  join  with  the  widow 
mentioned;  and  they  shall  be  respectively  en-  in  the  administration,  such  relation  or  kin- 
titled  thereto,  in  the  following  order,  to  wit :  dred,  or  such  one  or  more  of  them,  as  he  shall 

"  First,  his  widow,  or  next  of  kin.  or  both,  judge  will   best   administer  the   estate,  pre- 

as  the  judge  of  probate  shall  think  fit  ;  and  if  ferring  always  of  those  so  entitled,  such   as 

they  do  not   voluntarily  either  take  or   re-  are  in  the  nearest  degree  of  consanguinity 


OF   INTESTACY.  459 

The  administrator,  when  appointed,  has  the  same  right  to,  and 
power  over,  all  the  personal  estate  of  the  intestate  as  his  execu- 
tors would  have  had  if  he  had  made  a  will,(9')  and  this  right  and 
power  relate  back  to  the  time  of  the  intestate's  decease.(?^)  The 
same  duty  also  devolves  upon  the  administrator  of  paying  the 
debts  in  the  first  place.  The  provisions  of  the  recent  statutes  for 
protection  of  executors  in  distributing  the  assets  of  their  testator 
extend  also  to  the  administrator  of  the  effects  of  an  intestate. (5) 
He  has  also  the  same  privilege  as  an  executor  of  retaining  his 
own  debt  in  preference  to  all  others  of  the  same  degree. (i")  But 
the  surplus,  after  payment  of  the  debts,  must  be  distributed 
amongst  the  relatives  of  the  intestate  in  proportions  to  be  here- 
after mentioned.  In  order  to  enable  the  administrator  to  inform 
himself  of  the  state  of  the  assets,  and  to  pay  the  debts  of  the 
deceased,  the  same  period  of  a  year  from  the  time  of  the  decease 
as  is  allowed  to  an  executor  is  also  o-iven  to  the  administrator  be- 

o 

(q)   Williams  on  Executors,  pt.  2,  bk.  1,  ch.  1. 

(r)  Tharpe  v.  Stallwood,  5  Man.  &  Gran,  760,  E.  C.  L.  R.  vol.  44  ;  Foster  v.  Bates,  12 
M.  &  W.  226  ;  Welehman  v.  Sturgis,  13  Q.  B.  552,  E.  C.  L.  R.  vol.  66. 

(s)  Stats.  13  &  14  Vict.  c.  35,  s.  19  ;  22  &  23  Vict.  c.  35,  ss.  27,  28,  29 ;  23  &  24  Vict.  c. 
38,  s.  14.     A}He,  pp.  313,  314;  but  not  stat.  23  &  24  Vict.  c.  145,  s.  30,  ante,  p.  312. 

{t)   Warner  v.  Wainsford,  Hob.  127 ;  Williams  on  Executors,  pt.  3,  bk.  2,  cb.  2,  s.  6. 


with  the  decedent,  and  also  preferring  males  son's   Stat.    Ls.  of  Tenn.,  p.  72,   sec.  8  ;   Ls. 

to  females  ;   and  in  case  of  the  refusal  or  in-  of  Del.,   Rev.    Code  (1852),   p.   297,   sec.   9; 

competency  of  every  such  person,    to  one  or  Dig.  of  the  Stats,  of  Ark.,  p.  Ill,  sects.  6,  7, 

more   of  the   principal   creditors  of  the  de-  and  8;    How.  &  Hutch.  Stat.  Ls.  of  Missi.,  p. 

cedent,  applying  therefore,  or  to  any  fit  per-  396,  sec.  35  ;  Oldham  &  White's  Dig.   of  the 

son  at  his  discretion  ;   provided,  that  if  such  Ls.  of  Texas,  p.  166,  art.  705  ;    2  Matthews's 

decedent  were  a  married   woman,   her  bus-  Dig.  (Va.),  p.  654,  ^    4;  2    Compiled    Ls.  of 

band  shall  be  entitled  to  the  administration  Michigan    (1857),  p.  876,   art.  2879,    sec.   3  ; 

in  preference  to   all  other  persons  :  and  pro-  Code   of   Ala.  (1852),  p.  338,  §  1667;    1  Md. 

vided  further,  that  in  all  eases  of  an  admin-  Code    (1860),   p.  621,    art.   93,  sees.    18-31  ; 

istration  with  the  will   annexed,  where  there  Rev.  Stats,  of  Maine  (1857),  p.  411,  sec.  13; 

is  a  general  residue  of  the  estate  bequeathed,  Nixon's  Dig.  Ls.  of  N.  J.  (1861),  p.  276,  sec. 

the  right  to  administer  shall  belong  to  those  7:  Rev.  Code  of  N.  C.  (1855),  p.    282,   sec. 

having  the  right  to  such  residue,  and  the  ad-  2  ;  vol.  i,  Rev.   Stats,  of  Ky.  (1860),  p.  502, 

ministration  in  such  case  shall  be  granted  by  art.  2  ;    1    Rev.   Stats,  of  0.    (1860),   p.   568, 

the  register,  to  such  one  or  more  of  them  as  sec.  12  ;  Ls.  of  Iowa  (1860),  p.  409,  sec.  2343; 

he  shall  judge  will   best   administer  the  es-  Cobb's  New  Dig.  of  the  Ls.  of  Geo.  (1851), 

tate."     Purd.  Dig.  (1861),  p.  277,  sec.  28.  vol.  i,   p.  305,  sec.  59  ;  Tfaomps.   Dig.  of  the 

For  the  statutes  of  the  several    States  on  Ls.  of  Flu.,  p.   196,   sec.   5  ;  Rev.  Stats,   of 

this    subject,    see   N.     H.    Compiled    Stats.  Vt.  (1839),  pp.  263,   264,  sec   3;  Civil  Code 

(1853),  p,  404,  sec.  2  ;  Stats,  of  S.  C,  vol.  i,  of  La.,  arts.  1114  to  1117. 
pp.   108,  109,  sec.  16  ;  Caruthers  &  Nichol- 


460  OF   PERSONAL   ESTATE   GENERALLY. 

fore  he  can  be  required  to  make  any  distribution. (?<)  But,  not- 
withstanding this  delay,  the  interest  of  the  persons  entitled  to  the 
surplus  vests  in  them  from  the  time  of  the  decease  of  the  intes- 
tate ;  so  that  in  case  any  of  them  should  die  within  a  twelvemonth 
P^oqn-i  ^fter  the  decease  of  the  intestate,  the  share  *of  the  person 
-•so  dying  will  pass  to  his  own  executors  or  administra- 
tors, (x) 

In  some  instances  administration  is  granted  for  a  limited  pur- 
pose, or  confined  to  a  given  time.  Of  this  we  have  already  had 
an  instance  in  the  case  of  administration  durante  minore  cetate, 
when  the  sole  executor  named  in  a  will  is  under  age;(?/)  and  the 
same  sort  of  administration  is  granted  on  intestacy,  in  case  of  the 
minority  of  the  next  of  kin. (2-)  So  if  the  executor  or  next  of  kin, 
as  the  case  may  be,  should  be  out  of  the  realm  at  the  time  of  the 
decease  of  the  testator  or  intestate,  the  court  will  grant  a  limited 
administration  durante  absentia,  which  will  expire  the  moment  of 
the  return  of  such  executor  or  next  of  kin.  And  if  the  executor 
should  prove  the  will,  or  if  any  person  should  obtain  letters  of 
administration,  and  afterwards  go  to  reside  out  of  the  jurisdiction 
of  the  English  courts,  the  court  is  empowered  by  act  of  Parlia- 
ment(rt)  to  grant  administration,  at  the  end  of  a  year  from  the 
death  of  the  testator  or  intestate.  Again,  when  a  suit  concern- 
ing the  right  of  administration  is  pending  in  the  Court  of  Pro- 
bate, that  court  may  appoint  an  administrator  pendente  lite,  who 
will  have  all  the  rights  and  powers  of  a  general  administrator, 
other  than  the  right  of  distributing  the  residue  of  the  personal 
estate ;(6)  and  the  administrator  so  appointed  may  receive  such 
reasonable  remuneration  for  his  trouble  as  the  court  may  think 
fit.(c)  The  court  also  may  appoint  such  administrator  or  any 
other  person  receiver  of  the  real  estate  of  the  deceased  pending 
P^oqn  ^"y  ^^^^  touching  the  validity  of  his  *will,  if  it  affect  such 
'-        -•  real  estate.(6?)     So  if  a  will  should  have  been  made,  but 

(7/)   Stat.  22  &  23  Car.  II,  e.  10,  s.  8.    ' 
(.r)   Edwards  v.  Freeman,  2  P.  Wms.  442. 
(y)   A»te,  p.  302. 

{z)   Williams  on  Executors,  pt.  1,  bk.  5,  eh.  3,  s.  3. 

{a)  Stat.  38  Geo.  Ill,  c.  87,  ss.  1-5,  extended  by  stats.   20  &  21  Viet.  c.  77,  s.   74;  21  <fc 
22  Vict.  c.  96,  s.  18. 

{h)  Stat.  20  &  21  Vict.  c.  77,  s.  70.  {d)   Stat.  20  &  21  Vict.  c.  77,  s.  71. 

(c)   Sect.  72. 


OF   INTESTACY.  461 

the  executors  should  have  reuouncecl,  or  died  before  their  testa- 
tor, the  court  will  appoint  the  person  having  the  greatest  interest 
in  the  effects,  generally  the  residuary  legatee,  to  administer  the 
same  according  to  the  directions  of  the  will,  in  which  case  the 
administration  granted  is  termed  an  administration  cum  testamento 
annexo,  with  the  will  annexed.(e)  And  it  is  now  provided,  that, 
if  by  reason  of  the  insolvency  of  the  estate  of  the  deceased,  or 
other  special  circumstances,  the  court  shall  think  it  necessary  or 
convenient  to  appoint  as  administrator  any  other  person  than  the 
person  by  law  entitled  to  the  grant,  the  court  may  do  so ;  and 
every  such  administration  may  be  limited  as  the  court  shall  think 

Letters  of  administration,  as  well  as  probates,  are  liable  to  the 
payment  of  an  ad  valorem  stamp  duty  on  the  value  of  the  personal 
estate  of  the  deceased  within  the  United  Kingdom ;(^)  but  the 
duty  on  letters  of  administration,  where  there  is  no  will,  is  after 
a  higher  rate  than  the  duty  on  probates,  or  on  letters  of  administra- 
tion with  the  will  annexed. (/i)^     A  heavy  penalty  is  imposed  by 

(«)  Williams  on  Executors,  pt.  1,  bk.  5,  ch.  3,  s.  1. 

(/)   Stat.  20  &  21  Vict.  c.  77,  s.  73.  {h)  Stat.  55  Geo.  Ill,  c.  184. 

(g)   Ante,  p.  309. 


'  This  last  kind  of  administrator  is  called  posed  to  be  in  different  counties."     Vol.  i, 

a  .special  administrator,  or  an  administrator  Md.  Code  (1860),  p.  030,  art.  93,  sec.  60. 

ad  colli gciiduin,  who  may  be  appointed   by  And  see,  for  the  provisions  of  the  different 

the  officer  having   the  proper  authority,  ac-  States,   Cobb's  New  Dig.  of  the  Ls.  of  Geo. 

cording   to  his  di.scretion,  for  the   purpose  of  (1851),   p.  283,  sec.  6,   and  p.   311,  sec.   73; 

preserving  the   estate  of  the  decedent,  until  Thompson's  Dig.  of  the  Ls.  of  Fla.,  p.   198, 

regular  letters  testamentary  or  of  adrainistra-  sec.  1;  How.  &  Hutch.   Stat.   Ls.  of  Missi., 

tion  are   granted,  or   until  the  will   is  estab-  pp.  391,   392,   sec.  24;   Gen.   Stats,  of  Mass. 

lished,  and  in  such  like  cases.  (1860),  p.  484,   sec.  6  ;  Rev.  Stats,  of  N.  Y. 

"Letters  ad  colligendum,  may  be  granted  (5th  ed.),  vol.  iii,  pp.   160,   161,   sec.  38;   2 

by  the  Orphans'  Court  of  the  county  in  which  Compil.  Ls.  of  Michigan  (1857),  p.  877,  art. 

the    will    was    proved    or    authentic.ited,    or  2881,  sec.  5  ;  Code  of  Ala.  (1852),  p.  339,  sec. 

where  letters  of  administration  ought  to  be  1676;  Rev.  Stats,  of  Maine   (1857),  p.  413, 

granted,  in  cases  of  delay,  on  account  of  ab-  sec.  27;  Rev.  Code  of  N.  C.   (1855),  p.  283, 

aence  from  the  State  of  an  executor,  a  contest  sees.  9  and  10  ;  1  Rev.  Stats,  of  0.  (1860),  p. 

relative  to  the  will,  or  right  of  administra-  569,  sec.  14. 

tion,  or  the  absence  or  neglect,  of  an  executor  ^  !„  this  country,  there  is  no  distinction 

or  person  entitled  to  administration,  to  qual-  made,  as  to  revenue  duty,  between  letters  of 

ify,  or  from  any  other  cause;  and  such  let-  administration,  where  there  is  no  will,  and 

ters  may  be  granted  to  one  or  more  persons,  probates,   or  letters  of  administration,   with 

in   the  discretion  of  the  court,   in  case   the  the  will  annexed.     See  ante,  note  1,  p.  309. 
personal  estate  of  the  deceased  shall  be  sup- 


462  OF    PERSONAL   ESTATE   GENERALLY. 

the  Stamp  Act,  on  any  person  who  sliall  take  possession  of,  or  in 
any  manner  administer  any  part  of  the  personal  estate  of  any 
deceased  person,  without  obtaining  probate  or  administration 
within  six  calendar  months  after  his  or  her  decease,  or  within  two 
calendar  months  after  the  determination  of  any  suit  or  dispute 
respecting  the  will  or  the  right  to  administration. (z)  The  same 
exemptions  from  duty  in  favor  of  seamen,  marines,  and  soldiers, 
and  also  in  favor  of  small  *depositors  in  savings  banks, 
"-  -^  which  have  been  established  with  respect  to  the  probate 
duty, (A')  apply  also  to  the  duty  on  letters  of  administration. 

The  office  of  administrator  is  not  transmissible,  like  the  office 
of  executor.^  On  the  decease  of  an  administrator,  before  he  has 
distributed  all  the  effects  of  the  intestate,  a  new  administrator 
must  be  appointed;  for  the  administrator  or  executor  of  such 
administrator  has  no  right  to  intermeddle.  So  if  an  executor 
should  die  intestate,  without  having  completely  distributed  his 
testator's  effects,  an  administrator  must  be  appointed  to  distribute, 
according  to  the  will  of  the  testator,  such  of  his  effects  as  were 
not  distributed  by  the  deceased  executor.(^)  In  each  of  these 
cases  the  administration  granted  is  called  an  administration  de 
bonis  non  admmistratis,  of  the  goods  not  administered,  or,  more 
shortly,  de  bonis  7i.on.{m)  All  second  and  subsequent  grants  of 
probate  or  letters  of  administration  must  be  made  in  the  princi- 
pal registry  of  the  Court  of  Probate,  or  in  the  district  registry 
where  the  will  is  registered  or  the  original  grant  of  administra- 
tion has  been  made,  or  to  which  it  may  have  been  transmitted. (w) 

The  application  of  an  intestate's  effects,  after  payment  of  his 
debts,  is  now  regulated  by  statutes  of  the  reign  of  Charles  II,  and 
James  II, (o)  commonly  called  the  Statutes  of  Distribution,  by 
which  statutes  the  rights  of  the  relations  of  the  deceased  appear 

(»)   £100,  and  ten  per  cent,  on  the  stamp  duty  ;  stat.  55  Geo.  Ill,  c.  184,  s.  37. 
{k)   Ante,  p.  310. 

(I)   Shep.  Touch.  465;   Williams  on  Executors,  pt.  1,  bk.  3,  ch.  4. 
(m)  Williams  on  Executors,  pt.  1,  bk.  5,  ch.  3,  s.  2. 
(w)   Stat.  21  k  22  Vict.  c.  95,  s.  20. 

(o)  22  &  23  Car.  II,  c.  10  ;  1  Jae.  II,  c.  17,  s.  7.  See  Watkins  on  Descents,  Appendix, 
257  et  seq.,  4th  ed. 


'  See  ante,  p.  303,  note. 


OF   INTESTACY.  463 

to  have  been  first  definitely  ascertained  and  rendered  legally  avail- 
able.^ Under  these  statutes,  if  the  intestate  leave  a  widow  and 
any  child  or  children,  or  descendant  of  any  child,  the  r^^ooo-i 
*  widow  shall  take  a  third  part  of  the  surplus  of  his  ef- 
fects. If  he  leave  no  child,  nor  descendant  of  any  child,  she 
shall  have  a  moiety.  In  this  respect,  the  distribution  is  the  same 
as  took  place  under  the  ancient  law.  The  husband  of  a  married 
woman  is  entitled  to  the  whole  of  her  eftects.(p)  If  the  intestate 
leave  children,  two-thirds  of  his  effects  if  he  leave  a  widow,  or 
the  whole  if  he  leave  no  widow,  shall  be  equally  divided  amongst 
his  children,  or  if  but  one,  to  such  one  child.  But  the  descend- 
ants of  such  children  as  may  have  died  in  the  intestate's  lifetime, 
shall  stand  in  the  place  of  their  parent  or  ancestor. (g)  Such 
children,  however,  as  have  been  advanced  by  the  parent  in  his 
lifetime  must  bring  the  amount  of  their  advancement  into  hotch- 
pot, so  as  to  make  the  estate  of  all  the  children  to  be  equal,  as 
nearly  as  can  be  estimated.  But  the  heir  at  law  notwithstanding 
any  lands  he  may  have  by  descent  or  otherwise  from  the  intestate, 
is  to  have  an  equal  part  in  the  distribution  with  the  rest  of  the 
children,  without  any  consideration  of  the  value  of  such  land.(r) 
If  the  intestate  leave  no  children  or  representatives  of  them,  his 
father,  if  living,  takes  the  w^hole ;  or,  if  the  intestate  should  have 
left  a  widow,  one-half.  If  the  father  be  dead,  the  mother,  broth- 
ers, and  sisters  of  the  intestate  shall  take  in  equal  shares, (5) 
subject,  as  before,  to  the  widow's  right  to  a  moiety;  and  brothers 
or  sisters  of  the  half  blood  have  an  equal  claim  with  those  of  the 
whole  blood. (<)  K  any  brother  or  sister  shall  have  died  in  the 
lifetime  of  the  intestate,  leaving  children,  such  children  shall 
stand  in  loco  •parentis^  provided  the  mother  or  any  brother  or  sister 
be  living. (it)  If  there  be  no  brother  or  sister,  *nor  child  r^ 004-1 
of  such  brother  or  sister,  the  mother  shall  take  the  whole, 
or  if  the  widow  be  living,  a  moiety  only,  as  before;  but  a  step- 
mother   can    take    nothing.(x)     If  there    be    no    mother,    the 

{p)  Stat.  29  Car.  11,  c.  3,  s.  25.  {>)  Stat.  22  &  23  Car.  II,  c.  10,  s.  5. 

(q)  See  Burton's  Compendium,  pi.  1402.  («)   Stat.  1  Jac.  II,  c.  17,  s.  7 

(0  Jessopp  V.  Watson,  1  My.  &  K.  665  ;  Burnet  v.  Mann,  1  My.  &.  K.  672,  n. 
(?<)  Lloyd  V.  Tench,  2  Ve.s.  Sen.  215  ;  Durant  v.  Prestwood,  1  Atk.  454  j  West,  448. 
(x)  Duke  of  Rutland  v.  Duchess  of  Rutland,  2  P.  Wms.  216. 


1  Each  State  of  the  Union   has   its   own    difiFering  from  each  other,  are  but  variations 

Statute  of  Distributions  ;  and  these,  slightly    of  the  Statutes  of  Charles  II,  and  James  II. 


464  OF   PERSONAL   ESTATE   GENERALLY. 

brothers  and  sisters  take  equally,  the  children  of  such  as  may  be 
dead  standing  in  loco  loarentis.  Beyond  brothers'  and  sisters' 
children,  no  right  of  representation  belongs  to  the  children  of  rel- 
atives with  respect  to  the  shares  which  their  deceased  parents 
would  have  taken.  And  if  there  be  neither  brother,  sister,  nor 
mother  of  the  intestate  living,  his  personal  estate  will  be  distribu- 
ted in  equal  shares  amongst  those  who  are  next  in  degree  of  kin- 
dred to  him. 

In  tracing  the  degrees  of  kindred,  in  the  distribution  of  an 
intestate's  personal  estate,  no  preference  is  given  to  males  over 
females,  nor  to  the  paternal  over  the  maternal  line,(^)  nor  to 
the  whole  over  the  half  blood,  as  in  the  case  of  descent  of  real 
estate;  nor  does  the  issue  stand  in  the  place  of  the  ancestor.  The 
degrees  of  kindred  are  reckoned  according  to  the  civil  law,  both 
upwards  to  the  ancestor  and  downwards  to  the  issue,  each  gener- 
ation counting  for  a  degree.(2:)  Thus  from  father  to  son,  or  from 
son  to  father,  is  one  degree;  from  grandfather  to  grandson,  or 
from  grandson  to  grandfather,  is  two  degrees;  and  from  brother  to 
brother  is  also  two  degrees,  namely,  one  upw^ards  to  the  father, 
and  one  downwards  to  the  other  son.  So  from  uncle  to  nephew  is 
three  degrees,  one  upwards  to  the  common  ancestor,  and  two 
downwards  from  him;  and  from  nephew  to  uncle  is  also  three  de- 
grees, two  upwards  and  one  downwards.  If,  therefore,  there  be 
neither  issue,  father,  brother,  sister,  nor  mother  of  the  intestate 
living,  such  persons  as  are  his  next  of  kin,  according  to  the  rule 
*above  laid  down  are  entitled  in  equal  shares  i^er  capita  to 
'-  ^  his  personal  estate,  subject  to  his  wife's  right  to  a  moiety, 
should  she  survive  him.  As  the  kindred  becomes  more  distant, 
the  number  of  persons  entitled,  if  living,  as  well  as  the  difficulty 
of  proving  their  respective  pedigrees,  becomes  prodigiously  aug- 
mented. "  It  is  at  the  first  view  astonishing,"  says  Blackstone,(a) 
"to  consider  the  number  of  lineal  ancestors  which  every  man 
has  within  no  very  great  number  of  degrees :  and  so  many  differ- 
ent bloods  is  a  man  said  to  contain  in  his  veins  as  he  hath  lineal 
ancestors.     Of  these  he  hath  two  in  the  first  ascending  degree, 

(y)  Moor  v.  Barhatn,  1  P.  Wms.  53. 

(z)   Mentney  •;;   Petty,    Pre.  CLa.    693;  Wallis  v.  Hodson,  2  Atk.  117;  2  Black.  Com. 
504,  515. 

{a)  2  Black.  Com.  203. 


OF    INTESTACY.  4G5 

his  own  parents;  he  hath  four  in  the  second,  the  parents  of  his 
father,  and  the  parents  of  his  mother;  he  hath  eight  in  tlie  third, 
the  parents  of  his  two  grandfathers  and  two  grandmotiiers;  and, 
by  the  same  rule  of  progression,  he  liath  an  hundred  and  twenty- 
eight  in  the  seventh ;  a  thousand  and  twenty-four  in  the  tenth ; 
and  at  the  twentieth  degree,  or  the  distance  of  twenty  genera- 
tions, every  man  hath  above  a  million  of  ancestors,  as  common 
arithmetic  will  demonstrate."  The  number  of  collateral  relations 
who  may  claim  through  such  ancestors  is  of  course  far  more 
numerous. 

The  estates  of  intestate  freemen  of  the  city  of  London, (6)  and 
of  persons  having  their  fixed  or  general  residence  within  the 
archiepiscopal  province  of  York  (excepting  the  diocese  of  Ches- 
ter), were  until  recently  distributed  according  to  peculiar  cus- 
toms, apparently  derived  from  the  ancient  mode  of  distribution. (c) 
Some  parts  of  Wales  also  appear  to  have  been  subject  to  peculiar 
customs  of  distribution;  for  these  several  customs,  though  post- 
poned to  the  right  of  testamentary  disposition  by  the  statutes  to 
which  we  have  already  *referred,(cf)  were  nevertheless  not  pggg-i 
abolished  by  those  statutes  in  the  event  of  no  will  being 
made.  But  a  recent  statute  has  now  altogetlier  abolished  all 
customary  modes  of  administration. (c) 

The  shares  of  persons  claiming  any  personal  estate  of  the 
amount  or  value  of  201.  or  upwards  under  an  intestacy  are  sub- 
ject to  the  same  duty  as  legacies  to  persons  of  the  same  degree 
of  kindred.(/)i  If  there  be  no  next  of  kin,  the  crown,  by  virtue 
of  its  prerogative,  will  stand  in  their  place, (^f)  but  subject  always 
to  the  widow's  right  to  a  moiety  in  case  she  should  survive.(A) 

(h)  Onslow  V.  Onslow,  1  Sim.  18. 

(c)  Williams  on  Executors,  pt.  3,  bk.  4,  ch.  2. 

(d)  Ante,  p.  294. 

(e)  Stat.  19  &  2n  Vict.  c.  94. 

(/)  Stat.  55  Geo.  Ill,  c.  1«4.     See  avte,  pp.  315,  316. 

(g)  Taylor  f.  Iluygarlh,  14  Sim.  8;  Powell  v.  Merrett,  1  Sma.  &  Giff.  381.  See  stat.  15 
&  16  Vict.  e.  3. 

[h)  Cave  v.  Roberts,  8  Sim.  214. 


1  See  antf,  p.  315,  note  2. 
'60 


466  OF    PERSONAL   ESTATE   GENERALLY. 

The  division  of  the  personal  estate  of  an  intestate,  effected  by 
the  Statute  of  Distributions,  is  remarkable  for  its  fairness.  The 
only  provision  which  niii>-ht  be  amended  is  that  which  places  the 
half  blood  on  an  equality  with  the  whole.  A  corresponding  equal- 
ity in  interest  and  feelingbut  rarely  exists  in  actual  life.  The 
proper  place  for  the  half  blood  appears  to  be  that  now  assigned 
to  them  in  the  descent  of  real  estate,  according  to  the  recom- 
mendation of  the  Real  Property  Commissioners,  namely,  next 
after  those  of  the  same  degree  of  the  whole  blood.(^)  The  ap- 
pointment of  an  executor  or  administrator,  in  whom  the  whole 
personal  property  is  vested,  with  full  power  of  disposition,  tends 
greatly  to  simplify  the  title  to  leasehold  estates  and  other  prop- 
erty of  a  personal  nature.  It  could  be  wished,  however,  that  the 
office  of  an  administrator  were  transmissible  in  the  same  manner 
as  that  of  an  executor.  In  other  respects,  the  distribution  of 
i-^  „  personal  estate  on  intestacy  ^approaches  far  more  nearly 
-'to  the  disposition  which  the  deceased  himself  would  prob- 
ably have  made,  than  the  descent  of  real  property,  either  at  the 
common  law  or  according  to  the  custom  of  gavelkind.  A  person 
possessed  only  of  small  landed  property  usually  devises  it  to 
trustees  for  sale,  with  full  power  to  give  receipts  to  purchasers, 
and  directs  the  division  of  the  produce  by  his  trustees  amongst 
his  children  in  such  shares  as  he  may  think  just,  with  regard  to 
the  provision  already  made  for  any  of  them  in  his  lifetime.  He 
does  not  leave  his  younger  children  to  beggary,  in  order  that  his 
wdiole  property  may  devolve  to  his  eldest  son  according  to  the 
course  of  the  common  law,  a  course  pursued,  as  the  author  be- 
lieves, in  no  other  civilized  country  in  the  world. (A)  Neither 
does  he  leave  it  to  all  his  sons  equally  in  undivided  shares,  thus 
inflicting  an  injustice  on  his  daughters,  and  allowing  all  plans  for 
the  improvement  of  the  lands  to  be  checked  bj^  one  dissentient 
voice,  unless  a  partition  should  be  resorted  to,  by  wliich  the 
property  would  be  si"»lit  up  into  parcels  too  small  for  the  con- 
venience of  agriculture.  If  by  any  accident  a  man  should  die 
without  making  his  will,  it  would  seem  to  be  the  province  of  an 
equitable  legislature  to  make  such  a  disposition  of  his  property 

((.)   See  Principles  of  the  Law  of  Real  Property,   77,  1st  ed.  ;  82,    2d  ed.  ;  86,  3d  &  4th 
eds.  ;  91,  5th  ed.  ;  97,  6th  ed. 
(/.)  Co.  Litt.  191  a,  n.  (I),  vi,  4. 


OF    INTESTACY.  467 

as  would,  in  ordinary  circumstances,  most  nearly  correspond 
with  his  intention.  It  is  true  that  when  property  is  large,  it  is 
usually  entailed  on  the  eldest  son  and  his  issue,  subject  to 
moderate  portions  for  the  younger  children.  This  custom  of 
primogeniture  is  suited  to  the  institutions  of  our  country,  and  to 
the  habits  of  the  class  to  whi(;h  large  landed  property  usually 
belongs,  and  the  author  has  no  wish  to  see  it  disturbed.  The 
settlements,  however,  by  which  these  entails  are  created  are 
more  frequently  made  by  deed  than  by  will.  They  almost  in- 
variably contain  provisions  for  the  portions  of  younger  children, 
varying  in  amount  with  the  value  of  the  property;  and  whether 
*made  by  deed  or  will,  they  are  usually  long  and  intri-  r>„qqo-i 
cate  in  their  nature,  providing  for  the  numerous  contin- 
gencies which  may  arise  under  the  peculiar  circumstances  of 
each  family.  Nothing  in  fact  can  be  more  different  than  the 
devolution  of  an  estate  to  the  eldest  son  under  a  family  settle- 
ment, and  the  descent  on  an  intestacy  to  the  eldest  son  as  heir  at 
law.  In  the  one  case  he  takes  subject  to  the  proper  claims  of 
the  other  members  of  his  family;  in  the  other  he  is  bound  to 
them  by  no  obligation  at  all.  There  seems  to  be  no  method  of 
making,  in  case  of  intestacy,  any  sort  of  disposition  of  landed 
property  which  might  be  reasonably  simple,  and  at  the  same 
time  resemble  an  ordinary  familj^  settlement.  If  such  a  settle- 
ment be  not  made  by  deed,  the  owner  has  ample  power  of 
eiiecting  the  same  object  by  his  will.  Intestacy,  in  fact,  rarely 
happens  to  the  owner  of  large  landed  property.  The  property 
which  descends  to  heirs  under  intestacies,  though  large  in  the 
aggregate,  is  generally  small  in  individual  cases.  When  the 
wishes  of  all  cannot  be  consulted,  that  which  would  have  been 
the  wish  of  the  generality  of  intestates  ought  apparently  to  form 
the  foundation  of  the  rule.  From  a  consideration  of  these  cir- 
cumstances the  reader  may  perhaps  be  induced  to  think,  that  if, 
in  case  of  intestacy,  the  rules  for  the  devolution  of  real  and 
personal  estate  were  identical,  and  with  some  slight  variations 
similar  to  those  which  now  exist  as  to  personalty,  the  law  on  this 
subject  would  be  rendered  both  more  simple  and  more  just. 

The  descent  of  real  estate  to  distant  heirs,  and  the  devolution 
of  personalty  to  distant  kindred,  involve  an  amount  of  learning 


468  OF    PERSONAL   ESTATE   GENERALLY. 

and  litigation,  the  abolition  of  wliich  would  perhaps  he  desirable. 
The  family  and  near  relations  of  an  intestate  have  generally 
claims  upon  his  bounty,  Avhich  ought  not  to  be  disappointed  by 
the  accident  of  his  decease  without  making  a  will.  But  distant 
r*QQQn  relatives  have  seldom  any  such  claims,  nor  consequently 
L  J  *any  expectation  of  such  claims  being  fulfilled.  To  with- 
hold from  them,  therefore,  that  which  they  had  never  expected 
to  enjoy,  would  not  be  to  inflict  a  loss.  Under  the  present 
system,  the  property  of  an  intestate  who  has  no  near  relations, 
is  not  unfrcquently  frittered  away  in  expensive  contests  between 
0]3i30sing  claimants,  or  else  it  devolves  unexpectedly  upon  per- 
sons who,  for  want  of  previous  education,  are  unable  to  make 
use  of  it  with  benefit  either  to  themselves  or  to  the  community. 
In  a  country  so  heavily  burdened  as  our  own,  any  addition  to 
the  public  income,  not  having  the  pressure  of  a  tax,  would  be  a 
very  desirable  acquisition.  Such  an  addition  might,  as  it  ajjpears 
to  the  author,  be  very  properly  made  by  the  devolution  to  the 
public  of  the  properties  of  intestates  having  none  but  distant 
relatives.  The  country  in  which  a  man  has  lived,  and  in  which 
his  property  has  been  acquired,  or  at  any  rate  protected,  has 
certainly  some  claims  upon  him, — claims  which  seem  preferable 
to  those  of  the  man  who,  in  the  case  of  real  estate,  founds  his 
title  on  his  descent  from  the  most  remote  male  paternal  ancestor 
of  the  intestate, (^)  or  who  claims  a  share  in  the  personalty  be- 
cause he  chances  to  be  a  survivor  amongst  the  multitude  stand- 
ins:  in  the  fifth  or  sixth  degree  of  a  series  of  kindred  wdiich 
increases,  as  it  grows  distant,  in  geometrical  progression, (?w) 

(/)  See  Principles  of  the  Law  of  Real  Property,  78,  1st  ed.  ;  83,  2d  ed.  ;  87,  3d  &  4th 
eds.  ;  92,  5th  dd  ;  98,  6th  ed. 

(m)  The  author's  attention  has  since  been  called  to  a  similar  proposal  in  MilTs  Political 
Economy,  vol.  i,  pp.  272,  273,  2d  ed. 

« 


OF   THE   MUTUAL   RIGHTS   OF   HUSBAND   AND   WIFE.        469 


*CH AFTER    V.  [*340] 

OF    THE    MUTUAL    RIGHTS    OF    HUSBAND    AND    WIFE. 

Marriage,  being  essential  to  the  welfare  of  the  community, 
and  also  involving-  important  consequences  to  the  individuals 
concerned,  is  not  on  the  one  hand  allowed  to  be  unduly  re- 
strained, nor  on  the  other  to  be  brought  about  by  unfair  means. 

Amongst  the  many  striking  differences  between  the  laws  ot 
real  and  personal  property,  by  which  our  legal  system  is  compli- 
cated, will  be  found  the  rules  relating  to  attenipted  restraints  on 
marriage.  Real  estate  is  governed  by  the  rules  of  the  common 
law;  but  personal  estate,  when  bequeathed  by  will,  has,  as  we 
have  seen,(«)  long  been  subject  to  the  jurisdiction  of  the  ecclesi- 
astical courts,  These  courts  have  adopted,  with  some  modifica- 
tion, the  rules  of  the  civil  law,  which  is  more  favorable  than  the 
common  law  of  England  to  liberty  of  choice  in  marriage.  Hence 
it  follows  that  some  restrictions  on  marriage,  which  are  valid 
when  applied  to  a  gift  of  real  estate,  are  void  when  attempted  to 
be  imposed  on  a  gift  of  personal  property.  The  rules  respecting 
real  and  personal  estate  so  far  agree  that  a  condition  annexed  to 
a  gift  of  either,  that  a  person  shall  not  marry  at  all,  is  void. (6) 
But  a  gift  of  either  by  a  husband  to  his  wife  during  her  widow- 
hood is  valid  ;(c)  neither  would  a  gift  of  the  income  of  property 
to  a  *single  person  until  marriage,  with  a  gift  over  on  1-^04-1-1 
marriage,  appear  to  be  invalid.((/)  When,  however,  a  gift  ^  -' 
is  made,  with  a  condition  that  it  shall  be  forfeited  if  the  donee 
marry  without  the  consent  of  certain  trustees  or  other  persons, 

(a)  A7>te,  p.  306. 

(l>)  Shep.  Touch.  132;  Perrin  v.  Lyon,  9  East,  170,  183  ;  Ris-hton  v.  Cobb,  9  Sirn.  615  ; 
5  My.  &  Or.  145  ;  Morley  v.  Rennoldson,  2  Hare,  570. 

(c)  Barton  v.  Barton,  2  Vern.  308. 

(d)  See  Right  d.  Compton  v.  Compton,  9  East,  267  ;  Morley  v.  Rennold.son,  2  Hare,  570, 
580  ;  Webb  v.  Grace,  2  Phil.  701 ;  Lloyd  o.  Lloyd,  2  Sim.  N.  S.  256  ;  Heath  v.  Lewis,  3  De 
Gex,  M.  &  G.  954. 


470 


OF  PERSONAL  ESTATE  GENERALLY. 


the  difference  between  the  laws  of  real  and  personal  estate  be- 
comes conspicuous.  If  the  gift  be  of  real  estate,  or  of  money 
charged  on  real  estate,  it  will  cease  on  the  event  of  marriage 
without  the  required  consent.(e)  But  if  it  be  a  bequest  of  per- 
sonal property,  the  condition  is  regarded  as  merely  in  ierrorem 
and  void,(/)  unless  accompanied  by  a  bequest  over  to  some  other 
person  on  the  marriage  taking  place  Avithout  consent ;(7)  so  that 
the  legatee  will  be  entitled  to  retain  the  legacy,  notwithstanding 
his  or  her  marriage  without  consent,  unless  on  that  event  it  be 
expressly  given  in  some  other  manner.  Such  conditions  in  be- 
quests of  personalty,  when  unaccompanied  by  a  gift  over,  are 
called  in  terrorem,  because,  says  Lord  Eldon,  "  they  are  supposed 
to  alarm  persons,  when  we  know  they  contain  no  terror  whatso- 
ever. "(A)' 


(f)   Reynish  v.  Martin,  3  Atk.  330,  333. 

(f)  Bellasis  v.  Ermine,  1  Cha.  Ca.  22. 

(g)  Stratton  v.  Grymes,   2  Vern.  357  ;  Harvey  v.  Aston,  1  Atk.  3(51 
19  Ves.  1,  13. 

(/i)   19  Ves.  13. 


Clarke  v.  Parker, 


^  Contracts  in  restraint  of  marriage,  are 
regarded  as  contrary  not  only  to  the  law  and 
order  of  our  nature,  but  also  as  contrary  to 
sound  policy,  and  hence  are  illegal  and  void. 
"Marriage,  no  doubt,  may  be  made  the  sub- 
ject of  regulation  by  qualified  restrictions, 
under  certain  circumstances,  but  under  no 
circumstances  whatever,  ought  a  general  and 
entire  restriction  of  it,   to  be  countenanced 

and  sanctioned  by  law Conditions, 

also,  in  restraint  of  marriage,  are  odious; 
and  are,  therefore,  held  to  the  utmost  rigor 
and  strictne.^s.  They  are  contrary  to  sound 
policy."  Middleton  v.  Rice,  6  Pa.  L.  Journ. 
240.  A  condition  in  restraint  of  marriage,  is 
void,  therefore,  when  it  is  annexed  to  a  leg- 
acy, without  a  limitation  over;  but  if  there 
is  a  limitation  over,  the  condition  is  good  ; 
Mcllvaine  v.  Gethen  et  al.,  3  Whart.  R.  583; 
Hoopes  V.  Dundas,  10  Pa.  St.  R.  77  ;  Com- 
monwealth V.  Stauffer,  Id.  350;  Middleton  v. 
Rice,  6  Pa.  L.  Jour.  230  ;  Bennett  v.  Robin- 
son, 10  Wat.  R.  350;  Stroud  v.  Bailey,  3 
Grant's  Cas.  310  ;  Hughes  v.  Boyd,  2  Sneed"s 
R.  512  ;  Hotz's  Est.,  48  Pa.  St.  R.  422  ;  Par- 
sons V.  Winslow,  6  Mass.  R.  169  ;  in  the  last 
of  which  cases,    Judge  Sedgwick   remarks : 


"It  is  a  general  rule,  that  a  condition  an- 
nexed to  a  devise  or  bequest  for  life,  whereby 
it  is  to  be  divested  by  the  marriage  of  the 
devisee  or  legatee,  is  to  be  considered  as  in- 
tended purely  in  terrorem,  and  it  is  therefore 
void.  To  this  rule  there  is  an  exception,  that 
such  condition  shall  be  effectual,  if  the  sub- 
ject of  the  devise  or  bequest  be  given  over, 
so  as  to  create  an  interest  in  another  person. 
And  again,  this  exception  is  restrained  and 
limited.  To  give  it  effect,  the  giving  over  to 
a  third  person,  must  be  an  express  giving  over 
of  the  particular  devise  or  legacy,  unincor- 
porated with  any  other  subject ;  and  it  must 
also  be  immcdi.ate,  to  take  effect  at  the  timo 
of  the  marriage."  But  the  doctrine  just 
stated,  will  not  apply  to  any  case  of  condi- 
tional limitation  ;  for,  as  was  said  in  Middle- 
ton  V.  Rice,  "  We  must  be  careful  not  to 
confound  limitations  with  conditions,  for  lim- 
ilatiovs  may  be  good,  notwithstanding  they 
are  seemingly  in  restraint  of  marriage,  and 
were  so  by  the  civil,  as  well  as  by  the  common 
law.  As,  for  instance,  where  the  meaning  of 
the  testator  is  not  to  forbid  marriage,  but  to 
grant  the  use  of  the  thing  bequeathed  until 
the  legatee  shall  marry  ;  or  where  the  prohi- 


OF    THE    MUTUAL    RIGHTS    OF    HUSBAND    AND    WIFE. 


471 


In  order  to  prevent  marriages  from  being  unfairly  obtained,  it 
is  a  rule  in  equity  that  all  contracts  for  reward  for  procuring  mar- 
riages (called  marriage  brocage)  are  void.(z)  And  if  a  parent  or 
guardian  should  stipulate  for  any  private  benefit  for  the  marriage 
of  his  child  or  ward,  such  stipulation  would  be  void,  and  money 
actually  paid  under  it  would  be  decreed  to  be  refunded.(j') 


[*342] 


*Few  marriages  are  now  contracted  between  persons 
possessing  any  amount  of  property,  without  a  previous  set- 
tlement of  such  property  being  made,  in  some  stipulated  manner, 

(i)  Hall  V.  Potter,  3  Levinz,  411 ;  Shower's  Par.  Gas.  76. 

O)   1  Fonblanque  on  Equity,  262;  Smith  v.  Bruning,  2  Vern.  392. 


bition  of  marriage  is  not  made  conditionally 
by  this  word,  if,  .  .  .  but  by  other  words  or 
adverbs  of  time  :  as  when  the  testator  willeth 
that  his  daughter  or  wife  shall  be  executrix, 
or  have  the  use  of  his  goods,  so  lung  as  she 
shall  remain  unmarried."  And  see,  also, 
Coppage  V.  Alexander's  Heirs,  2  B.  Mon.  R. 
314;  Napier  v.  Davis  et  al.,  7  J.  J.  Marsh.  R. 
286  ;  Hoopes  v.  Dundas,  10  Pa.  St.  R.  77 ; 
Bennett  v.  Richardson,  10  Wat.  R.  350. 

In  the  case,  however,  of  a  devise  of  real  es- 
tate, to  cease  on  the  event  of  a  subsequent 
marriage,  it  matters  not  whether  the  gift  be 
'coupled  with  a  condition  or  a  conditional 
limitation  ;  for,  in  either  case,  it  will  be 
good  ;  Phillips  V.  Medbury,  7  Conn.  R.  573  ; 
Bailey  v.  Teackle  et  al.,  Exrs.,  Wythe's  R. 
173  ;  Vance  v.  Campbell's  Heirs,  1  Dana's  R. 
229  ;  Commonwealth  v.  Stauffer,  10  Pa.  St.  R. 
360  ;  Bennett  v.  Robinson,  10  Wat.  R.  350  ; 
Arnold  v.  Gilbert,  5  Barb.  S.  R.  191  ;  Cor- 
nell V.  Lovett's  E.\r.,  35  Pa.  St.  R.  103  ; 
Vaughn  v.  Lovejoy,  34  Ala.  R.  437  ;  and  al- 
though in  Middleton  v.  Rice,  6  Pa.  L.  Jour. 
230,  the  learned  judge  seemed  to  incline  to 
the  opinion,  that  a  devise  of  real  estate,  upon 
a  condition  subsequent  in  restraint  of  mar- 
riage generally,  would  be  void  as  to  the  con- 
dition, yet  that  decision  may  be  considered  as 
overruled  by  Commonwealth  v.  Stauffer,  and 
McCullough's  Appeal,  12  P.  St.  R.  197;  in 
which  last  it  was  said,  "  The  provision  for 
the  wife,  in  this  case,  is  a  devi.se  of  the  prof- 
its, and,  consequently,  of  the  land,  to  her 
for  life,    in  the  first  instance ;    but   coupled 


with  a  condition,  or  a  conditional  limitation, 
no  matter  which,  that  she  do  not  marry. 
Whether  it  be  the  one  or  the  other,  a  limita- 
tion over  is  unnecessary,  to  give  it  effect ; 
for  it  is  a  familiar  principle,  that  devises  of 
land,  whether  to  a  widow  or  any  one  else, 
are  governed,  not  by  the  civil,  but  by  the 
common  law,  which  knows  nothing  of  a  condi- 
tion ill  terror eni..''^  In  the  case,  however,  of 
Williams  et  al.  v.  Cowden,  13  Mo.  R.  211  ; 
where  one,  by  his  will,  devised  to  his  son, 
and  to  his  daughter,  in  equal  moieties,  a 
tract  of  land,  with  the  provision,  that  "  if  his 
said  daughter  should  marry  or  die,"  the  land 
should  belong  exclusively  to  his  said  son,  it 
was  held  that  the  above  condition  attached 
to  the  estate  of  the  daughter,  is  in  restraint 
of  marriage,  and  is  void. 

"A  condition  annexed  to  the  vesting  of  a 
legacy,  requiring  the  guardian's  approbation 
of  the  legatee's  marriage,  is  not  in  terrorem 
only,  when  the  condition  is  confined  to  mar- 
riage under  twenty-one,  and  there  is  a  limit- 
ation over."  Collier,  Exr.,  v.  Slaughter's 
Adrar.,  20  Ala.  R.  263. 

For  further  instances  of  gifts  or  devises 
during  widowhood,  see,  Drury  et  al.  v. 
Grace,  2  Har.  &  Johns.  R.  356  ;  Crosby  v. 
Wendell  et  al.,  6  Paige's  C.  R.  548  ;  Picot 
V.  Armistead,  2  Ired.  C.  R.  226;  Bankhead, 
Admr.,  v.  Carlisle,  Admr.,  1  Hill's  C.  R.  368; 
Williams  v.  Vancleave,  7  Mon.  R.  388  ;  Dand- 
ridge  et  al.  v.  Dorrington,  6  Call's  R.  361  ; 
Blunt  et  al.  v.  Gee  et  al..  Id.  481  ;  Taylor  v. 
Birmingham,  29  Pa.  St.  R.  300. 


472  OF    PERSONAL   ESTATE   GENERALLY. 

for  the  benefit  of  the  intended  husband  and  wife  and  tlie  children 
of  the  marriage.  As  marriage  is  a  valuable  consideration, (/.•)  such 
settlements  are  binding  on  both  parties  if  of  full  age.  And  an  act 
of  Parliament  has  recently  been  passed,(^)  enabling  every  infant, 
not  under  twenty  if  a  male,  and  not  under  seventeen  if  a  female, 
to  settle  his  or  her  property,  whether  real  or  personal,  upon  a  mar- 
riage, provided  the  sanction  of  the  Court  of  Chancery  be  obtain- 
ed. But  if  the  settlement  be  not  made  under  the  provisions  of 
this  act,  and  either  husband  or  wife  should  be  under  age,  the 
settlement  will  not  be  binding  on  him  or  her,(m)  although  the 
other  party,  if  of  full  age,  wnll  be  bound  by  it.(»)  And  if 
both  of  them  should  be  under  age,  neither  of  them  will  be  bound 
by  it.  The  circumstance  of  the  settlement  of  an  infant's  per- 
sonal property  beii^g  fair  and  reasonable,  and  made  with  the  ap- 
probation of  his  or  her  guardians,  was  formerly  considered  as 
giving  it  validity  ;(o)  but  this  circumstance  seems  to  have  no 
weight.'  It  has,  however,  been  decided  that  a  competent  legal 
jointure(j:)  settled  on  the  intended  wnfe,  then  an  infant,  with  the 
concurrence  of  her  guardiaus,  in  lieu  of  her  right  to  dower  out 
o  her  husband's  freehold  lands,  and  in  lieu  of  her  distributive 
share  of  his  personal  estate  in  ,the  event  of  his  intestacy,  was 
sufficient  to  (  eprive  her  both  of  her  dower  and  of  her  distribu- 
tive  share  in  her  husband's  *personalty.(5')  "When  the 
•-  -^  intended  wife  only  is  an  infant,  a  settlement  of  her  per- 
sonal estate  in  possession  is  valid,  on  account  of  the  interest 
which,  as  we  shall  see,  the  law  gives  to  the  husband  in  such 
personal  estate.  The  settlement  in  such  a  case  is  in  fact  not  made 
by  the  wife,  but  by  the  husband,  who,  being  adult,  is  bound  by 

(k)  Anle,  p.  70. 

(/)  Stat.  18  &  19  Vict.  c.  43  ;  Re  Dalton,  6  De  Gex,  M.  &  G.  201,  extended  to  the  Court 
of  Chancery  in  Ireland,  by  stat.  23  &,  24  Vict.  c.  83. 

(m)  Ellison  v.  Elwin,  13  Sim.  309  ;  Le  Vasseur  v.  Scratton,  14  Sim.  116. 

(n)   Durnford  v.  Lane,  1  Bro.  C.  C.  106  ;  Milner  v.  Lord  Harewood,  18  Ves.  259. 

(o)   2  Roper's  Hu.sband  and  Wife,  26. 

(;;)  See  Principles  of  the  Law  of  Real  Property,  174,  1st  ed.  ;  184,  2d  ed.  ;  191,  3d  ed.  j 
192,  4th  ed.  ;   201,  6th  ed.  ;  211,  6th  ed. 

(q)  Earl  of  Buckingham  v.  Drury,  3  Brown's  Par.  Cas.  492. 


1  The  beneficial  contracts  of  infants,  are  ment,  or  by  positive  acts,  equivalent  thereto ; 
voidable  only,  and  may  be  ratified  by  them  N.  II.  M.  F.  Ins.  Co.  v.  Noyes,  32  N.  H.  R. 
after  arriving  at  maturity,  by  express  agree-    345  ;  Manning  v.  Johnson,  26  Ala.  R.  446. 


OF    THE    MUTUAL    RIGHTS   OF    HUSBAND    AND    WIFE.        473 

its  provisions  to  the  extent  of  the  interest  which  he  would  have 
taken  had  no  settlement  been  made.(r) 

If  no  settlement  be  made,  the  principles  which  govern  the 
rights  of  husband  and  wife  to  personal  property  must  still  be 
traced  to  the  circumstances  of  ancient  rather  than  of  modern 
times.  In  ancient  times  landed  property  was  by  far  the  most 
important;  and  the  wife  was  accordingly  entitled  to  a  provision 
out  of  the  lands  of  her  husband,  in  the  event  of  her  surviving 
him,  which  no  alienation  that  he  could  make,  nor  any  debts  which 
he  might  incur,  were  able  to  set  aside. (-s)  But  in  those  days  per- 
sonal property  was  of  too  insignificant  a  value  to  be  the  subject 
of  any  such  provision.  And  if  a  woman  now  marry  without  a 
settlement,  she  has  still  no  claim  on  her  husband's  personal  estate, 
however  large,  unless  he  should  happen  to  die  intestate,  in  which 
case,  as  we  have  already  mentioned,  she  is  entitled  to  a  third  or 
a  half  of  what  he  may  leave,  according  as  he  may  or  may  not 
leave  issue  surviving  him.  A  husband,  on  the  other  hand,  was 
in  ancient  times  considered  absolutely  entitled  to  such  personal 
chattels  as  his  wife  might  possess.  In  this  respect  the  law  was 
then  both  simple  and  sufficient.  By  the  act  of  marriage,  the 
wife  placed  herself  under  the  coverture  or  protection  of  her  hus- 
band. She  became  in  the  law  French  of  those  days  a  feme  covert. 
Thenceforth  all  demands  to  which  she  was  personally  liable  were 
to  *be  answered  by  her  natural  protector.  The  wife  was  r^^  044-1 
considered  as  merged  in  her  husband,  and  both  were  re-  *-  -' 
garded  as  but  one  person. (/)  So  long,  therefore,  as  the  coverture 
continued,  that  is,  during  the  joint  lives  of  the  husband  and  wife, 
the  husband  was  absolutely  entitled  to  all  personal  property 
which  his  wife  might  acquire,  and  was  also  liable  to  the  payment 
of  all  debts  which  she  might  previously  have  incurred.'  These 
simple  principles  still  pervade  the  law  relating  to  the  husband's 

(r)   Trollope  v.  Linton,  1  Sim.  &  Stu.  477,  485. 

(a)  See  Principles  of  the  Law  of  Real  Property,  172,  1st  ed.  ;  182,  2d  ed.  ;  189,  3d  ed.; 
190,  4th  ed.  ;   199,  5th  ed.  ;   209,  6th  ed. 

{/)  Pr.  R.  P.  104,  Lst  ed.  ;  170,  2d  ed.  ;  18:i,  M  ed.  ;  184,  4th  ed.  ;  190,  5th  ed.  ;  200, 
6th  ed. 

'  For  the  statutes  of  the  several  States  on  Curtesy,  Divorce,  Dower,  Feme  Covert,  Joint- 
this  subject,  see  generally,  the  titles  Husband  ure,  Marriage,  Married  Women,  Widow,  Ac. 
and  Wife,  Abatement,  Alimony,  Conveyance,     Ac,  as  contained  in  the  resjiective  Digests. 


474  OF   PERSONAL   ESTATE   GENERALLY. 

interest  in  his  wife's  personal  estate,  although  the  several  differ- 
ent species  of  personal  estate  to  which  modern  civilization  has 
given  rise,  conjoined  with  the  rules  of  equitahle  administration 
laid  down  hy  the  Court  of  Chancery,  have  given  to  this  branch  of 
law  a  perplexity  unknown  to  the  simple,  though  somewhat  harsh, 
rules  of  our  ancestors. 

In  the  first  place,  then,  personal  property  of  the  ancient  kind, 
namely,  chattels  personal  or  movable  goods,  belonging  to  the 
wife  at  the  time  of  her  marriage,  or  given  to  her  afterwards,  be- 
come the  absolute  property  of  her  husband  in  the  same  manner 
precisely  as  if  they  had  been  originally  his  own,  or  had  been 
subsequently  given  to  him.(Z)^)  He  may  dispose  of  them  as  he 
pleases  in  his  lifetime  or  by  his  will;  they  will  be  subject  to  his 
debts;  and  if  he  should  die  intestate,  the  wife  will  have  no  fur- 
ther claim  to  them  than  to  any  other  of  his  effects.  So  impera- 
tive is  this  rule,  that  if  chattels  personal  be  given  to  a  married 
woman  jointly  with  a  stranger,  the  law  will  instantly  sever  the 
jointure,  and  make  the  husband  and  the  stranger  tenants  in 
common,  (t') 

r*Qzifii  *The  only  exceptions  to  this  sweeping  rule  are  the 
-'  wife's  paraphernalia,  so  called  from  the  Greek  Tiapacpep'^rj, 
being  things  to  which  the  wife  is  entitled  over  and  above  her 
dower.  The  wife's  paraphernalia  consist  of  her  apparel  and  or- 
naments suitable  to  her  rank  and  degree ;  [x]  and  gifts  made  by 
the  husband  to  his  wife  of  jewels  or  trinkets  to  be  worn  by  her 
as  ornaments  are  considered  as  part  of  her  paraphernalia.  (_?/) 
These  articles,  equally  with  the  wife's  other  personal  chattels, 
may  be  disposed  of  by  the  husband  in  his  lifetime, (2)  and,  with 
the  exception  of  the  wife's  necessary  clothing,  are  also  liable  to 
his  debts,  (a)  The  wife  also  herself  has  no  power  to  dispose  of 
them  by  gift  or  will  during  her  husband's  lifetime. (6)     But  para- 

(v)  Co.  Litt.  300  a;  351  b;  Bac.  Abr.  tit.  Baron  and  Feme  (C),  3;  1  Rop.  Husb.  and 
Wife,  169. 

{v)   Bracebridge  v.  Cook,  Plowden,  4]  8.     See  Ke  Barton's  Will,  10  Hare,  12. 

(x)  2  Bl.  Com.  436  ;  2  Rop.  Husb.  and  Wife,  140  ;  11  Vin.  Abr.  tit.  Executors  (Z.  5). 

(y)  Graham  v.  Londonderry,  3  Atk.  394  ;  Jervoise  v.  Jervoise,  17  Beav.  566. 

(z)   Ibid.  ;  2  Rop.  Husb.  and  Wife,  141. 

(a)  2  Bl.  Com.  436  ;  Ridout  v.  Earl  of  Plymouth,  2  Atk.  104;  Lord  Townsend  v.  Wind- 
ham, 2  Ves.  Sen.  1,  7. 

{b)  2  Rop.  Husb.  and  Wife,  141. 


OF    THE    MUTUAL    RIGHTS    OF    HUSBAND    AND    WIFE.         475 

pliernalia  differ  from  the  wife's  other  personal  chattels  in  this  re- 
spect, that  the  hushancl,  though  he  may  dispose  of  them  iu  his 
lifetime,  has  no  power  to  bequeath  them  away  from  his  wife  by 
his  will.(c)  Gifts  of  jewels  or  trinkets  made  to  the  wife  by  a 
relative  or  friend,  either  upon  or  after  her  marriage,  will  gen- 
erally be  considered  in  equity  as  intended  for  her  separate  vse,{d) 
in  which  case  they  will  not  be  reckoned  amongst  her  parapher- 
nalia, but  will,  as  we  shall  hereafter  see,  be  exempt  from  the  con- 
trol and  debts  of  her  husband,  and  may  be  disposed  of  by  the 
wife  in  the  same  manner  as  if  she  were  unmarried. 

With  regard  to  such  of  the  wife's  personal  estate  as  is  not  in 
possession,  but  for  which  she  has  only  a  right  to  *sue,  the  r;^o4g-| 
rights  of  the  husband  are  different,  according  as  the  pro-  '- 
ceedings  against  the  persons  liable  to  be  sued  must  be  taken  in  a 
court  of  law  or  of  equity.  Property  of  this  nature,  as  we  have 
already  seen,(e)  is  termed  in  law  French  choses  in  action:  such  as 
may  be  recovered  by  action  at  law  are  called  legal  choses  in 
action,  and  such  as  must  be  recovered  by  suit  in  equity  are  called 
equitable  choses  in  action.  With  regard  to  each  of  them,  the 
rights  of  the  husband  are  of  a  different  kind,  although  in  each 
the  same  rule  applies,  that  if  he  can  get  them  into  his  possession 
during  the  coverture  he  has  a  right  to  keep  them,  otherwise  they 
will  belong  to  his  wife.(/) 

Legal  choses  in  action  consist  principally  of  debts  due  to  the 
wife,  and  secured  or  not  by  bond,  or  by  bills  or  promissory  notes. 
Of  all  these  the  husband  has  a  right  to  receive  payment,  and 
should  payment  be  refused  him,  he  may  sue  for  them  in  the  joint 
names  of  himself  and  his  wife  ;{fi)  but  bills  and  notes  of  the  wife 
payable  to  order,  being  transferable  by  indorsement,  may  be  in- 
dorsed by  the  husband  alone, (A)  or  sued  for  in  his  own  name.(;y 

(f)  Tipping  V.  Tipping,  1  P.  Wma.  730  ;  Northey  v.  Northey,  2  Atk.  77. 

(d)  Graham  v.  Londonderry,  3  Atk.  394;  2  Rop.  Husb.  and  Wife,  143. 

(e)  Ante,  p.  4. 

(/)  2  Bl.  Com.  434;   1  AVms.  on  Executors,  pt.  2,  bk.  3,  ch.  1,  s.  3. 

{g)  1  Rop.  Husb.   and  Wife,   213,  214;  Sherrington  v.  Yate.?,  12  Mee.  &  Wels.  855.     In 
this  case,  the  note  was  not  payable  to  order,  and  therefore  not  negotiable. 
(A)  Mai-on  v.  Morgan,  2  Ad.  &  El.  30,  E.  C.  L.  R.  vol.  29. 
(^■)  Burrough  v.  Moss,  10  Barn.  &  Cress.  558,  E.  C.  L.  R.  vol.  21. 


1  Evans  v.  Secrest,  3  Ind.  R.  545  ;  Holland    111.  R.  223  ;  Tritt's  Admr.  v.  Colwell's  Admr., 
V.  Moody,  12   Id,  170  ;  Young  v.  Ward,  21    31  Pa.  St.  R.  228. 


476  OF   PERSONAL   ESTATE   GENERALLY. 

All  such  legal  choses  in  action  as  accrued  to  the  wife  after  her 
marriage  may  be  sued  for  by  the  husband,  eitlier  in  the  joint 
names  of  himself  and  his  wife,  or  in  his  own  name  only  ;(/.•)  but 
if  the  wife  has  really  no  interest,  he  cannot  of  course  make  use 
of  her  iiame.(/)  If  the  husband  should  sue  in  the  joint  names  of 
^  himself  and  his  wife,  the  benefit  of  the  judgment  of  *the 
'-'^  ^-1  court  will  in  case  of  his  decease  survive  to  her;(m)  but  if 
he  sue  in  his  own  name,  the  benefit  of  the  judgment  will  form 
part  of  his  own  personalty.  If,  however,  the  husband  should  not 
have  received  the  money  in  his  lifetime,  or  should  not  have 
obtained  judgment  for  it  in  his  own  name,  his  wife  will,  on  his 
decease,  be  entitled  by  survivorship  to  the  chose  in  action  so 
remaining  still  unreduced  into  possession  •,{n)  and  bills  and  notes 
form  no  exception  to  this  rule.(o)  But,  if  the  wife  should  die 
before  her  husband,  these  choses  in  action,  still  remaining  unre- 
duced, will  form  part  of  her  personal  estate ;  and  her  husband 
must  take  out  administration  to  her  effects  before  he  can  proceed 
to  recover  them;(p)  when  recovered,  they  will,  with  the  rest  of 
her  personalty,  belong  to  himself  absolutely,  after  payment  of 
her  debts.(5)  The  only  exception  to  this  rule  occurs  in  the  case 
of  the  husband  being  entitled,  in  right  of  his  wife,  to  "  any  es- 
tate in  fee  simple,  fee  tail,  or  for  term  of  life,  of  or  in  any  rents 
"or  fee-farms,"  in  which  case  the  husband,  after  the  death  of  his 
wife,  is  empowered  by  statute(7^)  to  recover  the  arrears  accrued 
to  his  wife  before  marriage  by  action  of  debt  or  distress.  But 
this  provision  does  not  apply  to  the  rents  reserved  upon  leases 
for  years,  (.s) 

Equitable  choses  in  action  consist  principally  of  legacies,  re- 
siduary-personal estate  of  testators,  and  money  in  the  funds. 

(/,)   1  Eop.  Husb.  and  Wife,  213. 
(/)   Abbot  V.  Blofield,  Cro.  Jac.  644. 
(ot)  1  Vern.  396  ;  1  Rop.  Husb.  and  Wife,  212. 
(7i)   Co.  Litt.  351  b. 

(o)  Richards  v.  Richards,  2  Barn.  &  Adol.  447,  E.  C.  L.  R.  vol.  22  ;  Gaters  v.  Madeley, 
6  Mee.  k  Wels.  423  ;  Hart  v.  Stephens,  6  Q.  B.  937,  E.  C.  L.  R.  vol.  58  ;  Scarpellini  v. 
Atcheson,  7  Q.  B.  864,  E.  C.  L.  R.  vol.  53. 

(;;)  1  Rop.  Husb.  and  Wife,  205.  See  Betts  v.  Kimpton,  2  B.  &  Adol.  273,  E.  C.  L.  R. 
vol.  22. 

{q)  Stat.  29  Car.  II,  c.  3,  s.  25,  a)ite,  p.  333. 

(r)   Stiit.  32  Hen.  VIII,  c.  37,  s.  3. 

{s)   Prescott  v.  Boucher,  3  Barn.  &  Adol.  849,  E.  C.  L.  R.  vol.  23. 


OF    THE    MUTUAL    RIGHTS   OF    HUSBAND    AND   WIFE.        477 

But  all  kinds  of  property,  including,  as  is  *now  decided,  p^^qj^Q-, 
both  freehold  estate(i')  and  chattels  real,(i<)  vested  in  trus-  *-  -' 
tees,  who  are  answerable  only  to  the  Court  of  Chancery,  are 
subject  to  a  rule  of  equity,  by  which  equitable  choses  in  action 
are  mainly  distinguished  from  such  as  are  merely  legal.  This 
rule  is  as  follows:  that  the  Court  of  Chancery  will  not  assist,  nor, 
if  the  wife  should  dissent,  will  it  allow,  the  husband  to  recover 
or  receive  any  property  of  his  wife  recoverable  only  in  that 
court,  without  his  settling  a  due  proportion  of  such  property  on 
his  wife  and  children. (x)  The  right  of  the  wife  to  such  a  pro- 
vision is  termed  the  wife's  equity  for  a  seitlement.{iff  In  fixing  the 
proportion  to  be  settled,  a  prior  settlement  will  always  be  taken 
into  account.(x:)  But  wdiere  no  settlement  has  previously  been 
made,  the  proportion  required  to  be  settled  on  the  wife  is  most 
frequently  one-half  ;(a)  and  sometimes  the  court  has  gone  so  far 
as  to  require  a  settlement  of  the  whole  fund. (6)  Although  the 
children  are  usually  inserted  in  the  settlement,  yet  the  right  is 
personal  to  the  wife,  and  may  be  waived  by  her;(c)  nor  will  it 
survive  to  the  children  in  *case  of  her  decease  before  the  [-:^q4Q-^ 
court  has  made  its  decree ;((/)  but  if  she  die  after  the  de- 

{t)  Sturgis  V.  Champneys,  5  Myl.  &  Cr.  97  ;  Wortham  v.  Pemberton,  1  De  Gex  &  S.  644  ; 
Gleaves  v.  Paine,  1  De  Gex,  J.  &  S.  87.  See,  however,  Sugd.  V.  &  P.  450,  13th  ed.  ;  560, 
14th  ed. 

{it)  Hanson  v.  Keating,  4  Hare,  1. 

(a-)  It  was  formerly  held,  that  a  wife'-s  equity  to  a  settlement,  did  not  extend  to  sums 
under  £200  ;  Foden  v  Finney,  4  Russ.  428;  but  this  distinction  is  now  abolished  ;  In  Re 
Cutler,  14  Beav.  220;   Re  Kincaid,  1  Drew.  326. 

{y)   1  Rop    Husb.  and  Wife,  256  et  seq. 

(z)  March  v.  Head.  3  Atk.  720  ;  Lady  Elibank  v.  Montolieu,  5  Ves.  737  ;  Erskine's 
Trust.  1  Kay  &  John.  302. 

(«/)   1  Rop.  Husb.  and  Wife,  260  ;  Archer  v.  Gardiner,  1  C.  P.  Coop.  340. 

(A)  Brett  v.  Greenwell,  3  You.  &  Coll.  230  ;  Gardner  v.  Marshall,  14  Sim.  575  ;  Scott  v. 
Spashett,  3  Mac.  &  Gord.  599  ;  Dunkley  v.  Dunkley,  L.  C.  16  Jur.  767;  2  De  Gex,  M.  &  G. 
390  ;  Marshall  v.  Fowler,  16  Beav.  249  ;  Gent  v.  Harris,  10  Hare,  383  ;  Re  Welchman,  1 
GifF.  31. 

{r)  Murray  v.  Lord  Elibank,  13  Ves.  6.  But  the  wife  having  once  insisted  on  her  right, 
cannot  afterwards  waive  it;   Barker  v.  Lea,  fi  Mad.  330  ;   Whittem  v.  Sawyer,  1  Beav.  693. 

{(l)  De  la  Garde  v.  Lempriere,  6  Beav.  344,  overruling  Steinmitz  v.  Ilalthin,  1  Glyn  & 
Jam.  64;  Baker  v.  Bayldon,  8  Hare,  210  ;  Wallace  v.  Auldjo.  V.  C.  K.  9  Jur.  N.  S.  687, 
afifirmed  by  Lords  Jus.  11  W.  R.  972. 

1  Poindexter  v.  Jeffries,  15  Gratt.  R.  363  ;  Moore,  14  B.  Mon.  R.  259.     See  also  Hill  on 

Lowe   V.   Cody,    29    Geo.    R.    117;   Smith   v.  Trustees,    pages   405,    and    408  to  415,   and 

Long,    1    Met.    (Ky.)    R.    486  ;   Copi)e<lge   v.  notes. 
Threadgill,    3    Sneed's    R.    577  ;    Moore   v. 


478  OF    PERSONAL   ESTATE    GENERALLY. 

cree,  it  will  still  be  carried  into  eiFect  for  tlie  benefit  of  tbe 
cbildren.(e)  This  rule  of  the  Court  of  Chancery  is  founded  on 
one  of  the  maxims  of  equity,  that  he  who  would  have  equity 
must  do  what  is  equitable ;(/)  it  cannot,  therefore,  be  enforced 
until  the  time  arrives  when  the  fund  becomes  payable  to  the 
husband. (^)  If,  however,  as  most  frequently  happens,  the  hus- 
band can  obtain  from  the  executor  or  trustee  of  the  fund  in 
question  payment  of  it  to  himself,  without  the  assistance  of  the 
court,  he  has  a  right  to  do  so,  and  in  this  case  the  wife's  equity 
is  at  once  excluded;  and  if  the  time  of  payment  has  arrived,  the 
executor  or  trustee  may  safely  pay  over  the  fund  to  the  husband, 
unless  the  wife  shall  have  already  filed  her  bill  in  chancery  to 
enforce  her  right  to  a  settleraent;(A)  and  the  receipt  of  the  fund 
by  the  husband,  when  it  has  thus  become  payable,  is  also  an 
effectual  bar  to  the  wife's  right  by  survivorship. (i) 

If  the  husband,  instead  of  obtaining  payment  of  the  fund, 
should  assign  it  to  a  third  person, (Z:)  or  if  he  should  become 
bankrupt,(?)  his  assignee  will  take  subject  to  the  wife's  equity  for 
a  settlement,  in  the  same  manner  as  if  no  assignment  had  been 
r^c.r^-,  made.  But  if  *the  interest  to  which  the  wife  is  entitled 
"-  -^  consists  of  an  equitable  estate  for  her  life  only,  an  assignee 
from  the  husband  of  such  life  interest  for  valuable  consideration 
will  be  entitled  to  hold  it  as  against  the  wife's  equity  for  a  settle- 
ment ;(m)  although  she  would  be  entitled  to  a  settlement  as 
against  his  assignees  in  bankruptcy.(??)  If  the  husband  should 
die  before  the  assignee  has  got  possession  of  the  fund,  leaving 
his  wife  surviving,  the  wife's  right  by  survivorship  will  prevail 

(«)   Groves  v.  Clarke,  1  Keen,  132  ;  S.  C,  Groves  v.  Perkins,  6  Sim.  584. 

(/)  2  P.  Wms.  641. 

ig)   Osborn  c.  Morgan,  9  Hare,  4.32. 

(/<)    1  Rop.  Husb.  and  Wife,  273  ;   Murray  v.  Lord  Elibank,  10  Ves.  90. 

(i)  1  Hop.  Hii.sb.  and  Wife,  220  ;  Rees  v.  Keith,  11  Sim.  383  ;  Cunningham  v.  Autrobus, 
16  Sim.  436. 

{k)  1  Rop.  Husb.  and  Wife,  271  ;  Malcom  v.  Charlesworth,  1  Keen,  73,  74  ;  Seott  v. 
Spashett,  3  Mac.  &  Gord.  599  ;  Carter  v.  Taggart,  5  De  Gex  &  Smale,  49  ;  1  De  Gex,  M.  & 
G.  286.     See  Ward  v.  Yates,  1  Drew.  &  S.  80. 

(/)   1  Rop.  Husb.  and  Wife,  268. 

(«0  Elliott  V.  Cordell,  5  Mad.  149;  Stanton  v.  Hall,  2  Russ.  AM.  175,  182;  Tidd  v. 
Lister,  10  Hare,  140,  154  ;  3  De  Gex,  M.  &  G.  857 ;  Re  Duffy's  Trust,  28  Beav.  386. 

[71)   Wright  y.  Morley,  11  Ves-  17. 


OF   THE   MUTUAL   RIGHTS   OF   HUSBAND   AND   WIFE.        479 

over  the  title  of  the  assignee,  whether  in  hankruptcy(o)  or  for 
valuable  consideration. (j?) 

A  recent  act  of  Parliamentf'/)  enables  every  married  woman, 
with  the  concurrence  of  her  liusband,  by  deed  to  dispose  of  every 
future  or  reversionary  interest,  whether  vested  or  contingent,  of 
such  married  woman,  or  her  husband  in  her  right,  in  any  per- 
sonal estate  to  which  she  shall  be  entitled  under  any* instrument 
(except  her  marriage  settlement)  made  after  the  ^Ist  December^ 
1857;  also  to  release  or  extinguish  any  power  in  regard  to  any 
such  personal  estate,  and  also  to  release  and  extinguish  her  equity 
to  a  settlement  out  of  her  personal  estate  in  possession  under  any 
such  instrument  as  aforesaid.  But  every  such  disposition  must 
be  separately  acknowledged  by  her  in  the  manner  required  by 
the  act  for  the  abolition  of  fines  and  recoveries. (r)  And  nothino- 
therein  contained  is  to  extend  to  ahy  *reversionary  inter- 
est, to  which  she  shall  become  entitled  under  any  instru-  L  '^  J 
ment  by  which  she  shall  be  restrained  from  alienating  or  affect- 
ing the  same. 

If  the  wife  should  be  entitled  to  awy  chose  in  action,  whether 
legal  or  equitable,  of  a  reversionary  nature,  not  within  the  above- 
mentioned  act,  the  effect  of  an  assignment  by  the  husband  will 
be  different  under  different  circumstances.  The  Avife,  of  course, 
cannot  assign,  for  by  the  act  of  marriage  she  deprives  herself  of  all 
power  so  to  do ;  and  the  husband  can  only  assign  to  another  the 
interest  to  which  he  may  be  entitled  himself  Suppose  therefore 
that  the  wife  is  entitled,  on  the  death  of  A.,  a  person  now  li\dng, 
to  a  sum  of  stock  standing  in  the  names  of  trustees,  and  that  her 
husband  should  make  an  assignment  of  this  reversionary  interest 
to  B.,  a  purchaser:  the  benefit  which  will  accrue  to  B.  by  virtue 
of  this  assignment  will  vary,  according  as  the  husband,  the  wife, 
or  A.,  the  tenant  for  life,  may  happen  to  die  first.  If  the  hus- 
band should  die  first,  B.  will  lose  his  purchase;  for  the  wife, 

(o)   Pierce  v.  Thornley,  2  Sim.  167. 

{p)  Hatchings  v.  Smith,  9  Sim.  137  ;  Ellison  v.  Elwin,  13  Sim.  309  ;  Ashby  v.  Ashby,  1 
Coll.  553  ;  Le  Vasseur  v.  Scratton,  U  Sim.  116  ;  Michelmore  v.  Mudge,  2  Giff.  183. 

(q)  Stat.  20  &  21  Vict.  c.  57. 

(r)  Stat.  3  &  4  Will.  IV,  c.  74.  See  Principles  of  the  Law  of  Real  Property,  p.  189,  4th 
ed.  ;   197,  5th  ed.  ;  207,  6th  ed. 


480  OF   PERSONAL   ESTATE   GENERALLY. 

having  survived  her  husband,  will  now  on  the  death  of  A.  be  en- 
titled to  the  stock,  which  has  never  been  reduced  into  the  posses- 
sion of  her  husband,  or  of  B.,  his  assiguee.(s)  If  A.  should  die 
first,  B.  may  then  obtain  a  transfer  of  the  stock,  if  the  trustees 
choose  to  transfer  it  to  him,  and  if  the  wife  should  not  have  filed 
a  bill  to  enforce  her  equity  to  a  settlement.(^)  But  if  the  trustees 
should  refuse  to  transfer  without  the  direction  of  the  Court  of 
Chancer}^  or  if  the  wife  should  insist  upon  her  right,  then  B. 
will,  as  we  have  8een,(?/,)  most  probably  obtain  only  half  of  the 
fund  for  his  own  benefit,  and  will  be  obliged  to  settle  the  other 
half  on  the  wife  and  children.  If,  however,  the  wife  should  die 
first,  then  this  chose  in  action,  remaining  unreduced  into  posses- 
j-^  -,  sion,  *will,  like  a  legal  chose  in  action,  under  the  same 
^  *^-'  circumstances,(3:)  remain  part  of  the  wife's  personal  estate; 
and  the  husband,  on  taking  out  administration  to  his  wife,  will 
be  bound  by  his  previous  as'signment.  B.  will  accordingly  in 
this  single  event  obtain  the  whole  fund,  subject  however  to  the 
wife's  debts,  if  any.  It  was  once  thought  that  if  an  assignment 
could  be  obtained  from  the  tenant  for  life;  of  his  life  interest  in  a 
fund  circumstanced  as  above  mentioned,  to  the  married  woman 
entitled  to  the  reversion,  she  would  be  in  the  same  situation  as  if 
the  whole  fund  had  been  originally  held  in  trust  for  her  abso- 
lutely ;  and  that  after  such  an  assignment,  the  whole  fund  might 
therefore  be  transferred  to  the  husband.(2/)  But  it  is  contrary  to 
the  general  principle  of  equity  to  allow  the  rights  of  parties  to  be 
afi'ected  by  any  merger  or  extinguishment  of  interest;  and  the 
doctrine  in  question  has  been  overruled.(z) 

The  same  principles  which  apply  to  the  assignment  by  a  hus- 
band of  his  wife's  reversionary  interest  in  a  chose  in  action,  apply 
also  to  his  release,  which  will  be  as  little  binding  on  her  as  his  as- 
signment, in  case  of  her  being  the  survivor.(«)     If,  however,  the 

(s)  Purdew  v.  Jackson,  1  Russ.  1  ;  Honner  v.  Morton,  3  Russ.  65. 

{t)   Greedy  v.  Lavender,  13  Beav.  62. 

(n)   Ante,  p.  348. 

{x)  Ante,  p.  347. 

(y)  Creed  v  Perry,  14  Sim.  592  ;  Hall  v.  Hugonin,  14  Sim.  595  ;  Bishopp  v  Colebrook, 
V.  C.  E.,  11  Jur.  793. 

{z)  Whittle  V.  Henning,  11  Beav.  222  :  affirmed  2  Phil.  731  ;  Hanchett  v.  Briscoe.  22 
Beav.  496. 

(a)   Rogers  v.  Acaster,  14  Beav.  445  ;   Harley  v.  Harley,  10  Hare,  325. 


OF    THE   MUTUAL   RIGHTS   OF   HUSBAND   AND   TVIFE.         481 

reversionary  chose  in  action  of  the  wife  consist  of  money  charged 
on  real  estate,  the  wife's  interest  can  either  be  released  or  assig-n- 
ed  b}'  a  deed  acknowledged  by  her,  with  the  concurrence  of  her 
husband,  under  the  provisions  of  the  act  for  the  abolition  of  fines 
and  recoveries.(6)  The  *contrary  was  decided  in  a  recent  n^j^Q-Qi 
case,(c)  which  may  now  be  considered  as  overruled. (^        '-        -" 

The  same  principle  of  the  merger  of  the  wife  in  the  husband, 
which  gives  him  such  important  rights  in  her  personal  estate, 
renders  him  also  answerable  for  all  the  debts  and  liabilities  of 
his  wife  contracted  previously  to  her  marriage.(e)  But  if  judg- 
ment for  any  debt  be  not  recovered  during  the  continuance  of 
the  marriage,  the  liability  ceases,  except  to  the  extent  of  the 
assets  to  which  the  husband  may  be  entitled  as  his  wife's  admin- 
istrator;(/)  and  if  the  wife  survive,  she  will  again  become  solely 
liable.  The  husband  is  also  bound  during  the  coverture  to 
supply  his  wife  with  necessaries  suitable  to  her  station  in  life. 
She  is  therefore,  whilst  living  with  him,  considered  as  his  agent 
for  the  purchase  of  any  such  necessary  articles  with  which  he 
may  not  have  supplied  her.(^)  And  even  if  the  articles  should 
not  be  necessaries,  yet  if  the  husband  be  aware  of  the  pur- 
chase,(A)  or  if  he  recognize  it,  by  allowing  his  wife  to  use  or 
wear  the  articles  bought,(?!)  she  will  be  considered  as  having 
bought  them  with  his  authority,  and  he  will  consequently  be 
liable  to  pay  for  them. 

The  burdens  with  which  the  husband  is  thus  chargeable  are 
the  consideration  which  he  pays  for  his  marital  rights  in  his 
wife's  property.  It  is  therefore  a  rule  of  *law,  that  the  r^^q-j^n 
husband  shall  not,  previously  to  the  marriage,  be  de-  ■-         -• 

(b)  Stat.  3  &  4  Will.  IV,  c.  74.  See  Principles  of  the  Law  of  Real  Property,  189,  4th 
ed.  J  197,  5th  ed.  ;  207,  6th  ed. 

(c)  Hobby  v.  Allen,  V.  C.  Knight  Bruce,  15  Jur.  835  ;  S.  C.  nom.  Hobby  v.  Collins,  4  De 
Gex  &  S.  289. 

{d)  Siigd.  Real  Property  Statutes,  p.  240  ;  Briggs  v.  Chamberlain,  V.  C.  Wood,  18  Jur. 
56;  S.  C.  11  Hare,  69;  Tuer  v.  Turner,  20  Bear.  560. 

(e)  2  Roper's  Husband  and  Wife,  73  ;  Palmer  v.  Wakefield,  3  Beav.  227 ;  Luard's  Case, 
1  De  Gex,  F.  &  J.  533. 

(/)  Heard  v.  Stamford,  3  P.  Wms.  409. 

(g)  2  Roper's  Husband  and  Wife,  110  ;  Seaton  v.  Benedict,  5  Bing.  28. 

(A)  Petty  V.  Anderson,  3  Bing.  170,  E.  C.  L.  R.  vol.  15. 

(i)  See  Montague  v.  Benedict,  3  Barn.  &  Cress.  631,  638,  E.  C.  L.  R.  vol.  10. 

31 


482  OF   PERSONAL   ESTATE   GENERALLY. 

frauded  of  those  rights  by  his  intended  wife.(yl-)  Accordingly  if 
the  wife,  after  an  engagement  to  marry,  should  assign  away  any 
of  her  property  without  the  knowledge  and  consent  of  her  in- 
tended husband,  such  assignment  would  be  void,  as  a  fraud  on 
his  marital  rights.(/)  And  the  circumstance  of  the  intended  hus- 
band's being  ignorant  of  her  possession  of  the  property  in  ques- 
tion would  be  immaterial. (m) 

The  right  of  the  husband  to  the  whole  of  his  wife's  personal 
estate,  in  the  event  of  her  decease  in  his  lifetime,  may  be  waived 
by  his  giving  her  authority  to  dispose  of  such  estate,  or  any  part 
of  it  by  her  will;  and  such  a  will  will  be  valid  and  binding  on 
the  husband  if  he  once  allow  it  to  be  proved.(?i)  But  during  the 
wife's  lifetime,  and  even  after  her  death,  until  probate  of  the 
will,  this  authority  may  be  revoked;  and  if  the  husband  should 
die  before  the  wife,  such  a  will  would  not  be  binding  on  the 
wife's  next  of  kin.(o) 

But  at  the  present  day,  power  to  dispose  of  property  of  any  kind 
may  be  given  to  a  married  woman,  independently  of  her  hus- 
band, by  means  of  a  trust  for  her  sejoarate  use,  which  trust  may 
be  enforced  in  equity. {jj)  When  personal  estate  is  so  given,  the 
wife  has  the  same  powers  of  ownership  as  if  she  were  a  feme 
sole;  she  may  accordingly  dispose  of  such  property  without  her 
husband's  concurrence,  either  in  her  lifetime  or  by  her  will.(5') 
-,  But  should  she  die  in  his  lifetime  without  *having  made 
'-  -*  any  disposition,  her  husband  will  become  entitled  to  it 
either  in  his  marital  right(r)  or  as  her  administrator,(.s)  according 
as  the  property  may  be  in  possession  or  in  action.  A  trust  for  a 
woman's  separate  use  is  properly  and  technically  created  by  means 

{Jc)   Countess  of  Strathmore  v.  Bowes,  1  Ves.  Jun.  22,  28. 

(/)  England  v.  Downs,  2  Beav.  622 ;  Taylor  v.  Pugh,  1  Hare,  608. 

{m)  Goddard  v.  Snow,  1  Russ.  485. 

(«)   1  Rop.  Husb.  and  Wife,  169,  3  70. 

(o)   16  Ves.  156. 

(p)  See  Principles  of  the  Law  of  Real  Property,  164,  1st  ed.  ;  174,  2d  ed. ;  181,  3d  ed.  ; 
182,  4th  ed.  ;   190,  5th  ed.  ;  200,  6th  ed. 

(q)  Fettiplace  v.  Gorges,  1  Ves.  Jun.  46  ;  S.  C.  3  Bro.  C.  C.  8  ;  2  Rop.  Husb.  and  Wife, 
182. 

(/■)  Molony  v.  Kennedy,  10  Sim.  254 ;  Tugman  v.  Hopkins,  4  Man.  &  Gran.  384,  E.  C.  L. 
R.  vol.  43, 

(s)  Watt  V.  Watt,  3  Ves.  246,  247 ;  Proudley  v.  Fielder,  2  My.  &  Keen,  57. 


OF   THE    MUTUAL   RIGHTS   OF   HUSBAND   AND   WIFE.         483 

of  the  words  "separate  use."  But  a  gift  to  a  woman  for  her  sole 
U8e,(;')  or  a  direction  that  her  receipt  alone  shall  be  a  sufficient 
discharge,(w)  will  also  create  a  trust  for  her  separate  use.  A  gift, 
however,  to  a  woman  for  her  own  use, (a:)  or  to  be  paid  into  her 
proper  hauds,(y)  for  her  own  proper  use  and  benefi.t,(2')  will  not 
be  sufficient  to  exclude  the  rights  of  her  husband.^ 

A  simple  gift  of  property  for  a  married  woman's  separate  use 
is  not  so  usual  as  the  gift  of  the  income  only  of  the  property  dur- 
ing her  life  or  during  the  joint  lives  of  herself  and  her  husband.(a) 
A  gift  of  the  income  of  property  to  a  woman's  separate  use  may 
be  made  either  after  marriage,  or  in  contemplation  of  marriage, 
or  whilst  she  is  sole;  and  the  gift  may  be  made  either  independ- 
ently of  her  present  husband,  if  any,  or  of  any  future  husband. 
When  the  gift  is  made  to  a  woman's  separate  use,  independently 
of  any  future  husband,  the  act  of  her  marriage  will  confer  no 
interest  in  the  property  on  her  husband,  but  she  will  enjoy,  after 
•  marriage,  the  same  interest  and  power  of  disposition  as  she  had 
*before.(6)  It  is,  however,  more  usual,  w^hen  the  income  r^qrp-i 
only  of  property  is  given  to  a  wife's  separate  use,  to  in- 
sert a  condition  that  she  shall  not  dispose  of  the  same  in  any 
mode  of  anticipation.  Conditions  restraining  the  alienation  of 
property  are  generally  invalid,  as  being  contrary  to  the  policy  of 
the  law.  But  the  courts  of  equity  have  made  an  exception  to 
this  rule  in  favor  of  married  women,  and  having  once  established 
a  trust  for  a  woman's  separate  use,  they  have  permitted  such  a 
trust  to  be  made  effectual  bj^  depriving  the  wife  herself  of  the 
power  of  disposition. (c)  When  the  income  of  property  is  given 
to  a  woman's  separate  use,  without  power  of  anticipation,  she  is 

{t)  V.  Lyne,  Younge,  562  ;  Lindsall  v.  Thacker,  12  Sim.  178.     See,  however,  Gil- 
bert V.  Lewis,  1  De  Gex,  J.  &  S.  38. — qu.  ? 
(«)  Lee  V.  Prieaux,  3  Bro.  C,  C.  381. 

(a.)  Roberts  v.  Spieer,  5  Madd.  491  ;  Kensington  v.  Dollond,  2  Myl.  &  Keen,  184. 
(y)  Tyler  v.  Lake,  2  Russ.  &  Myl.  183. 
(z)   Blacklow  V.  Laws,  2  Hare,  49. 

(a)  See  Appendix  (B). 

(b)  Tullett  V.  Armstrong,    1  Beav.  1 ;   4  Myl.  &  Cr.  390  ;    Scarborough  v.  Borman,   1 
Beav.  .34;  4  Myl.  &  Cr.  377. 

(p)   Brandon  v.  Robinson,  18  Ves.  434. 

1  See   Wharton's   Hill   on    Trustees,    star    where  the  American  authorities  are  collect- 
page  405,  note  2,  and  star  page  420,  note  2,    ed. 


484  OF   PERSONAL  ESTATE   GENERALLY. 

not  thereby  deprived  of  tlie  power  of  alienation  so  long  as  she 
continues  single, (c?)  Previously  to  or  in  contemplation  of  mar- 
riage she  may  therefore  make  such  disposition  or  settlement  of 
such  income  as  she  may  think  proper.  But  should  she  marry 
without  a  settlement,  the  restraint  on  alienation  will  then  attach, 
and  so  long  as  she  remains  under  coverture,  she  will  have  no 
further  power  than  that  of  receiving  the  income  as  it  grows 
due.(e)  On  her  widowhood  her  power  of  alienation  will  again 
revive,(/)  but  will  cease  on  her  second  marriage  without  having 
previously  made  any  disposition,(^)  provided  the  restriction  or 
alienation  be  not,  by  the  terms  of  the  gift,  confined  to  her  first 
marriage.(A)  The  intention  to  restrain  alienation  ought  always 
r*Qf;7i  ^^  ^^  clearly  expressed.  A  direction  to  pay  the  *income 
^  -'of  property  into  the  hands  of  a  married  woman,  and  not 
otherwise, (z)  or  on  her  personal  appearance  and  receipt,(A')  will 
not  be  sufiicient  to  restrain  her  from  disposing  of  her  interest, 
the  words  being  considered  as  intended  only  to  exclude  the 
marital  claims  of  her  husband.  But  if  an  intention  can  be  col- . 
lected  from  the  terms  of  the  instrument,  not  only  to  exclude  the 
husband's  claims,  but  also  to  prevent  the  wife  from  anticipating, 
such  intention  will  prevail,  although  it  may  be  expressed  rather 
in  popular  than  in  strictly  technical  language. (^)' 

In  addition  to  trusts  for  separate  use,  powers  of  appointment 
may,  as  we  have  seen,(m)  be  given  to  married  women  independ- 
ently of  their  husbands,  by  means  of  which  they  may  be  enabled 
to  dispose  of  property  without  their  husband's  concurrence  ;{n) 
and  any  appointment  under  a  general  power  may  be  made  by  a 

{d)  Woodmeston  v.  Walker,  2  Russ.  &  Myl.  197  ;   Brown  v.  Pocock,  2  Russ.  &  Myl.  210. 

(e)  Tullett  V.  Armstrong,  1  Beav.  1  ;  4  Myl.  &  Cr.  390 ;  Scarborough  v.  Borman,  1 
Beav.  34 ;  4  Myl.  &  Cr.  377  ;  Clive  v.  Carew,  1  John.  &  H.  199. 

(/)  Barton  v.  Briscoe,  Jacob,  603.  (»)   Acton  v.  White,  1  Sim.  &  Stu.  429. 

(0-)   Tullett  V.  Armstrong,  nbi  supra.  (Ji.)  Ross's  Trust,  1  Sim.  N.  S.  196. 

(/t)  Re  Gaffee,  1  Mae.  &  Gord.  541. 

(/)  Brown  v.  Bamford,  1  Phil.  620;  Moore  v.  Moore,  1  Coll.  54;  Harrop  v.  Howard,  3 
Hare,  624;  Harnet  v.  Macdougall,  8  Beav.  187;  Field  v.  Evans,  15  Sim.  375;  Baker  v. 
Bradley,  7  De  Gex,  M.  &  G.  597  ;   Goulder  v.  Camm,  1  De  Gex,  F.  &  J.  146. 

(m)  Ante,  p.  247. 

{?/,)   See  Appendix  (B). 

1  See  ante,  p.  355,  note  1. 


OF    THE    MUTUAL   RIGHTS   OF    HUSBAND   AND   WIFE.         485 

married  woman  in  favor  of  her  husband,  as  well  as  of  any  other 
person.' 


1  A  married  woman  having  a  power  of  ap- 
pointment over  real  or  personal  estate,  may 
dispose  of  it  without  the  consent  of  her  hus- 
band ;  Osgood  V.  Breed,  12  Mass.  R.  632  ; 
Hoover  v.  The  Samaritan  Society,  4  Whart. 
R.  453  ;  Towers  v.  Hagner,  3  Id.  48  ;  Hol- 
man  v.  Perry  et  al.,  4  Mete.  R.  496  ;  Bradish 
V.  Gibbs  et  al.,  3  Johns.  C.  R.  536  ;  Newlin 
V.  Freeman  et  al.,  1  Ired.  R.  514  ;  West  v. 
West  et  al.,  10  Serg.  &  Raw.  R.  149  ;  Barnes's 
Lessee  v.  Irwin  et  al.,  2  Dal.  R.  201  ;  Leigh, 
Admr.,  v.  Smith  et  al.,  3  Ired.  C.  R.  442  ; 
Wilkinson  v.  Wright,  &c.,  6  B.  Mon.  R.  677  ; 
Strong  V.  Wilkin  et  al.,  1  Barb.  C.  R.  1  ; 
Moerhing  v.  Mitchell,  Ac,  Id.  264  ;  Robbins 
V.  Abrahams  et  al.,  1  Halst.  C.  R.  465 ; 
Cruger  v.  Cruger,  5  Barb.  S.  R.  226  ;  S.  C. 
nomine  Cruger  v.  Douglass,  4  Edw.  C.  R. 
433  ;  Ladd  v.  Ladd  et  al.,  8  How.  R.  10  j 
Pollock  V.  Glassell,  2  Gratt.  R.  439  ;  Wood- 
son V.  Perkins,  5  Id.  351  ;  Hicks,  Exr.,  v. 
Cochran  et  al.,  Exrs.,  4  Edw.  C.  R.  107  ;  Am. 
Home  Missionary  Society  v.  Wadhams,  10 
Barb.  S.  R.  604;  Chapman  v.  Gray,  Exr.,  8 
Geo.  R.  341  ;  Barton  et  al.  v.  Holly,  18  Ala. 
R.  408  ;  Petty  v.  Mallier,  14  B.  Mon.  R.  246. 
In  the  case  of  Thompson  v.  Murray,  2  Hill's 
C.  R.  214,  it  was  said  by  O'Neall,  J.:  "Not- 
withstanding in  general  legal  contemplation, 
the  existence  of  the  wife  is  merged  in  that  of 
her  husband  during  coverture,  yet  this  rule 
is   not  of  such    universal    application   as   to 

render  every  act  of  the  wife  void A 

feme  covert  may  execute  any  kind  of  power, 
whether  simply  collateral,  appendant,  or  in 
gross,  and  it  is  immaterial  ivhether  it  was 
given  to  her  while  sole  or  married.  The  con- 
citrrence  of  the  hushand  is  in  no  case  neces- 
sary  It   may    be   well,   however,   to 

look  at  the  manner  in  which  an  appointment 
operates,  to  show  that  no  objection  can  in 
fact  exist  to  an  execution  of  it  by  a  feme 
covert.  The  appointee  is  merely  designated 
by  the  person  making  the  appointment ;  his 
estate  and  rights  are  derived  from  the  deed 

creating  the   power This  being    the 

case,  and  the  appointee  taking  nothing  from 
the  wife,  but  all  from  the  person  creating  the 
power,  there  can  be  no  reason  to  avoid  her 


act  on  account  of  coverture,  the  disability  of 
which,  is  intended  both  for  the  protection  of 
her   husband,  and  also   for   herself."     Such 
powers  will  be  good,  though  created  by  arti- 
cles of  agreement,    made  between   husband 
and  wife  before  coverture,  without  the  inter- 
vention of  a  trustee,  for  "it  is  now  no  longer 
deemed  necessary  that  the  legal  estate  should 
be  vested  in  trustees,  to  enable  a  feme  covert 
to  dispose  of  her  estate  in  equity.     A  mere 
agreement,  entered  into  before  marriage  with 
her  husband,  that  she  should  have  the  power 
to  dispose  of  her   real   and   personal   estate 
during  coverture,  will  enable  her  to  do  so. 
Although  such   an    agreement   becomes   ex- 
tinguished, at   law,  by  the  subsequent  mar- 
riage, yet  equity  supports  it,  and  will  compel 
the  husband  to  perform  it;"   Strong  v.  Skin- 
ner, 4   Barb.   S.  R.  552  ;  Emery,  Admr.,  v. 
Neighbour  et  al.,  2  Halst.  R.  142  ;  Bradish 
V.  Gibbs  et  al.,  3  Johns.  C.  R.  536  ;  Newlin 
V.  Freeman  et  al.,  1  Ired.  R.  514;  Barnes's 
Lessee  v.  Irwin  et  al.,  2  Dal.  R.  201  ;  Resor 
V.  Resor,  9   Ind.  R.  347  ;  and  the  cases  re- 
ferred to  in  the  note  to  page  272,  ante.     And 
a  feme  covert   may  execute   these   appoint- 
ments as  well  in  favor  of  her  husband  as  a 
stranger;  Hoover  v.  The  Samaritan  Soc,  4 
Whart.  R.  453  ;  Towers  v.  Hagner,  3  Id.  48; 
Bradish  v.  Gibbs,  3  Johns.  C.  R.  536  ;   Dal- 
lam V.  Wampole   et  al..  Pet.  C.   C.  R.   116  ; 
Jaques  et  al.  v.  The  Trustees  of  the  M.  E. 
Church,  17  Johns.  R.  548  ;  Whitall  v.  Clark 
et  al.,  2  Edw.  C.  R.  149  ;  Cruger  v.  Cruger, 
5   Barb.   S.  R.  226  ;  S.  C.  nomine  Cruger  v. 
Douglass  et  al.,  4  Edw.  C.  R.  433  ;   Gardner 
V.  Gardner  et  al.,  22  Wend.  R.  526  ;  Meriam 
V.  Harsen  et  al.,  4  Edw.  C.  R.  70  ;  Imlay  et 
al.  V.  Huntington  et  al.,  20  Conn.  R.  173  ; 
Converse  v.  Converse,   9  Rich.  Eq.  R.  535. 
As   regards   the   formalities  required  to   be 
observed  in  the  execution  of  these  powers, 
see   Jackson   v.   Edwards,  7    Paige's    C.   R. 
402;  Picquet  v.  Swan  et  al.,  4  Mas.  R.  461  ; 
Emery,  Admr.,  v.  Neighbour  et  al.,  2  Halst. 
R.  142;  Newlin  v.  Freeman  et  al.,   1   Ired. 
R.  514  ;  Leigh,  Admr.,  v.  Smith  et  al.,  3  Ired. 
C.  R.  442  ;  Heath  v.  Withington,  6  Cush.  R. 
497. 


486  OF  PERSONAL  ESTATE  GENERALLY. 

Unhappy  difterenees  between  Imsband  and  wife  sometimes  end 
in  a  separation.     Such  a  state  of  things  is  not,  however,  encour- 


It  has  been  repeatedly  decided,  that  a  The  law  of  Tennessee,  Virginia,  South 
feme  covert  is,  in  respect  to  her  separate  Carolina,  Alabama,  Georgia,  Illinois,  Mis- 
estate,  to  be  deemed  a  feme  sole;  Leayeraft  sissippi,  and  Maryland,  is  similar  to  that  of 
V.  Hedden,  3  Green's  C.  R.  512  ;  N.  A.  Coal  Pennsylvania,  as  will  be  seen  from  the  fol- 
Co.  V.  Dyott,  7  Paige's  C.  R.  1,  S.  C.  20  lowing  cases,  which  agree  in  principle  with 
Wend.  R.  570  ;  Virouneau  v.  Pegram,  2  the  Pennsylvania  decisions  ;  Morgan  v.  Elam 
Leigh's  R.  183;  Williamson  v.  Beckham,  8  et  al.,  4  Terg.  R.  375;  Litton  v.  Baldwin  et 
Id.  20  ;  Cumming  et  al.  v.  Williamson  et  al.,  al.,  8  Humph.  R.  209  ;  Ware  et  al.  v.  Sharp 
1  Sandf.  C.  R.  17  ;  Martin  v.  Dwelly  et  al.,  1  Swan's  R.  489  ;  EUis  et  al.  v.  Barker,  Exr., 
6  Wend.  R.  1  ;  McCroan  et  al.  v.  Pope  et  al.,  1  Rand.  R.  47  ;  Calhoun  v.  Calhoun  et  al.,  2 
17  Ala.  R.  612  ;  Albin  v.  Lord,  39  N.  H.  R.  Strobh.  E.  R.  231 ;  Ewing  et  al.  v.  Smith  et 
196 ;  Gibson  v.  Walker,  20  N.  Y.  R.  476 ;  al.,  3  Desauss.  R.  456  ;  Reid  v.  Lamar,  1 
Cooke  V.  Husbands,  11  Md.  R.  492  ;  Marten  Strobh.  E.  R.  27;  Maywood  et  al.  v.  John- 
V.  Bebo,  6  Fla.  R.  381 ;  but,  there  is  con-  ston  et  al.,  1  HilFs  C.  R.  230;  Clark  v.  Ma- 
siderable  variance  among  the  decisions,  as  to  kenna,  Cheeves's  E.  R.  163  ;  Doty  et  al.  v. 
the  extent  of  her  ability  to  dispose  of  her  Mitchell,  9  Smed.  &  Mar.  R.  435  ;  Mont- 
estate  under  a  power,  some  holding  that  she  gomery  et  al.  v.  The  Agricultural  Bank,  10 
may  grant  or  devise  in  any  manner  not  ex-  Id.  566  ;  Wylly  et  al.  v.  Collins  &  Co.,  9  Geo. 
pressly  negatived  in  the  instrument  creating  R.  237 ;  Weeks  v.  Sego,  Admr.,  9  Id.  199; 
the  power  ;  and  others  maintaining  that  she  Tarr  et  al.  v.  Williams,  4  Md.  C.  Decs.  68  ; 
can  only  exercise  those  powers  expressly  giv-  Williams  v.  Donaldson  et  al.,  Id.  414 ;  Mil- 
en,  and  in  the  manner  pointed  out,  and  not  ler  et  al.  v.  Williamson  et  al.,  5  Md.  R.  220; 
otherwise.  The  weight  of  authority  is  de-  Swift  v.  Castle,  23  111.  R.  209  ;  Fletcher  v. 
cidedly  in  favor  of  the  latter  doctrine  ;  thus,  Coleman,  2  Head's  R.  384;  Hoyle  v.  Smith, 
in  Pennsylvania,  although  in  the  case  of  1  Id.  90 ;  Andrews  v.  Jones,  32  Missi.  R. 
Newlin  et  al.,   Exrs,   v.  Newlin,    1    Serg.   &    274. 

Raw.  R.  274,  it  was  held,  "that  if  a  man  In  the  State  of  New  York,  so  long  ago  as 
devise  his  real  estate  to  trustees  to  raise  a  the  case  of  The  Trustees  of  the  M.  E.  Church 
sum  of  money,  which  when  raised,  they  are  v.  Jaques  et  al.,  3  Johns.  C.  R.  77,  it  was 
to  put  out  at  interest,  for  the  sole  and  sepa-  decided  by  Chancellor  Kent,  that  a  "feyne 
rate  use  of  his  daughter,  a  feme  covert,  who  covert,  with  respect  to  her  separate  property, 
is  to  receive  the  interest  annually,  and  whose  is  to  be  considered  as  a.  feme  sole,  to  the  ex- 
receipt  is  to  be  a  discharge,  she  may  release  tent  only  of  the  power  given  to  her  by  the 
her  interest,  though  no  express  power  of  ap-  marriage  settlement.  Her  power  of  disposi- 
pointment  be  given  in  the  will ;"  yet,  that  tion  is  not  absolute,  but  sub  modo,  to  be  ex- 
decision  has  been  overruled,  and  there  is  no  ercised  according  to  the  mode  prescribed  in 
question  that  it  is  now  the  law  of  that  State,  the  deed  or  will,  under  which  she  becomes 
"that  instead  of  having  every  power  from  entitled  to  the  property.  Therefore,  if  she 
which  she  is  not  negatively  debarred  in  the  has  a  power  of  appointment  by  will,  she 
conveyance,  she  will  be  deemed  to  have  none  cannot  appoint  by  deed,  or  where  she  is  em- 
but  what  is  positively  given  or  reserved  to  powered  to  appoint  by  deed,  the  giving  a 
her;"  Thomas  v.  Fplwell  et  al.,  2  Whart.  bond,  or  note,  or  a  parol  promise,  without 
R  11 ;  Lancaster  v.  Dolan,  1  Raw.  R.  231 ;  reference  to  the  property,  or  making  a  parol 
Rogers  v.  Smith,  4  Pa.  St.  R.  93  ;  Lyne's  gift  of  it,  is  not  such  an  appointment."  But 
Exr.  V.  Grouse  et  al.,  1  Id.  114  ;  Dorrance  v.  that  decision  was  reversed  in  Jaques  et  al.  v. 
Scott,  3  Whart.  R.  316 ;  Wallace  v.  Coston,  The  Trustees  of  the  M.  E.  Church,  17  Johns. 
9  Wat.  R.  137  ;  Estate  of  Wagner,  2  Ash.  R.  R.  548,  where  it  was  held,  that  "though  a 
448  ;  Wright  v.  Brown  et  ux.,  44  Pa.  St.  R.  particular  mode  of  disposition  be  specifically 
224;  Penna.  Co.  v.  Foster,  35  Id.  134.  pointed  out  in  the  instrument,  or  deed   of 


OF   THE   MUTUAL   RIGHTS   OF   HUSBAND   AXD  T7IFE. 


487 


aged  by  the  law.     A  clause  in  a  marriage  settlement  providino- 
for  the  event  of  a  separation,  has  been  considered  to  be  void;(o) 

(o)  Cocksedge  v.  Cocksedge,  14  Sim.  244 ;  Cartwright  v.  Cartwright,  3  De  Gex,  M.  &  G. 
982  ;  H.  V.  W.,  3  Kay  &  J.  382.  See,  also,  Hindley  v.  Marquis  of  Westmeath,  6  Barn.  & 
Ores.  200,  E.  C.  L.  R.  vol.  13. 


settlement,  it  will  not  preclude  her  adopting 
any  other  mode  of  disposition,  unless  there 
are  negative  words  restraining  her  power  of 
disposition,  except  in  the  very  mode  so  pointed 
cut ;  and  this  still  continues  to  be  the  law  in 
that  State  ;  The  Firemen's  Insurance  Co. 
of  Albany  v.  Bay,  4  Barb.  S.  R.  413,  S.  C.  4 
Comst.  R.  9  ;  Knowles  et  al.  v.  McCamly  et 
al.,  10  Paige's  R.  342  ;  Strong  v.  Skinner,  4 
Barb.  S.  R.  552 ;  Gardner  v.  Gardner  et 
al.,  22  Wend.  R.  526 ;  although  the  doctrine 
has  been  somewhat  modified  by  the  enact- 
ment of  the  Revised  Statutes,  since  which, 
"  where  real  estate  is  settled  to  a  married 
woman's  separate  use,  neither  the  estate,  nor 
the  rents  and  profits,  can  be  charged  for  any 
debt  or  liability,  created  or  imposed  upon  it 
by  her.  It  is  no  longer  her  estate.  The  whole 
estate  is  in  the  trustees,  and  her  interest  in- 
alienable ;"  Noyes  v.  Blakeman,  3  Sandf. 
S.  R.  531 ;  L'Amoreaux  v.  Van  Rensselaer  et 
al.,  1  Barb.  C.  R.  34  ;  Rogers  v.  Ludlow  et 
al.,  3  Sandf.  C.  R.  104.  See  also,  Wadhams 
V.  American  Home  Missionary  Society,  2 
Kernan's  R.  415. 

In  Connecticut,  it  was  said  by  Storrs,  J.,  in 
the  case  of  Imlay  et  al.  v.  Huntington  et  al., 
20  Conn.  R.  173:  "The  principle  is  estab- 
lished, by  the  decided  weight  of  authorities 
in  this  country,  in  accordance  with  what  is 
now  universally  conceded  to  be  the  established 
doctrine  in  England,  that  an  ante-nuptial  set- 
tlement, by  a  woman,  of  her  property,  to  her 
separate  use  after  marriage,  gives  her,  in 
equity,  the  full  power  of  disposing  of  such 
property,  by  any  suitable  act  or  mode  of  con- 
veyance, in  the  same  manner,  and  to  the 
same  extent,  as  if  she  were  a  feme  sole,  ex- 
cepting so  far  as  there  is  some  express  or 
implied  restriction  upon  such  power  of  dispo- 
sition, in  the  instrument  of  settlement ;  and 
that  no  such  restriction  is  implied,  from  the 
circumstance  that  it  is  provided  in  such  set- 
tlement, that  she  may  dispose  of  it  in  any 
particular   mode   therein   pointed   out ;    but 


that  such  provision  must  either  expressly,  or 
by  necessary  implication,  exclude  any  other 
mode  of  disposition,  in  order  to  constitute 
such  a  restriction."  The  same  has  been  held 
also  in  North  Carolina  ;  Harris  et  al.  v.  Har- 
ris et  al.,  7  Ired.  E.  R.  111. 

As  to  the  manner  in  which  a  married 
woman  may  charge  her  separate  estate,  for 
the  debts  of  herself  or  her  husband,  see 
Conn  et  al.  v.  Conn  et  al.,  1  Md.  C.  Decs. 
212;  Price  et  al.  v.  Bigham's  Exrs.,  7  H.  & 
Johns.  R.  296 ;  Tiernan  v.  Poor  et  al.,  1  Gili 
k  Johns.  R.  216  ;  Frazier  et  al.  v.  Brownlow 
et  al.,  3  Ired.  E.  E.  237 ;  Boarman  v.  Groves, 
23  Missi.  R.  380;  Cherry  v.  Clements,  10 
Humph.  R.  552 ;  Greenough  v.  Wiggington, 
2  Green's  R.  435 ;  Bradford  v.  Greenway  et 
al.,  17  Ala.  R.  797;  Coats  et  al.  v.  Robinson 
et  al.,  10  Missi.  R.  760  ;  Forrest  et  al.  v.  Rob- 
inson, Exr.,  4  Port.  R.  44 ;  Sadler  et  al.  v. 
Houston  et  al..  Id.  208;  Heugh  v.  Jones,  32 
Pa.  St.  R.  432 ;  Hall  v.  Faust,  9  Rich.  Eq. 
R.  294  ;  Marshall  v.  Miller,  3  Met.  (Ky.)  R. 
3.33. 

A  distinction  is  to  be  noted  between  real 
and  personal  property  of  the  wife,  as  regards 
the  ability  of  her  husband  to  consent  to  her 
making  disposal  thereof ;  thus,  "  A  husband 
may  waive  the  interest  which  the  law  gives 
him  in  his  wife's  estate,  and  empower  her  to 
dispose  of  her  personal  estate  by  will ;  and 
his  assent  alone,  to  a  bequest  by  her  of  money 
or  chattels,  will  make  it  valid ;  but  as  to  the 
real  estate  of  the  wife,  the  rule  is  different ; 
and  his  assent  cannot  cause  that  to  be  a  law- 
ful conveyance  of  her  estate,  which,  by  the 
general  rules  of  law,  would  not  be  so."  Es- 
tate of  Wagner,  2  Ash.  R.  448;  West  v.  West 
et  al.,  10  Serg.  &  Raw.  R.  149  ;  Grimke  v. 
Exrs.  of  Grimke,  1  Desauss.  R.  366 ;  Exrs.  of 
Smelie  v.  Reynolds  et  al.,  Exrs.,  2  Id.  66  ; 
Starret  v.  Wyna  et  al.,  17  Serg.  &  Raw.  R. 
130 ;  Butler  et  al.  v.  Buckingham,  5  Day's 
R.  492 ;  Barton  et  al.  v.  Holly,  18  Ala.  R. 
408 ;  but  where  the  husband  is  sole  heir  of 


488  OF   PERSONAL  ESTATE   GENERALLY 

and  so  has  a  condition  in  a  gift  of  personal  estate  to  a  woman 
living  apart  from  lier  husband,  that  the  gift  shall  cease  in  case 
she  should  *cohabit  with  him.( jj)  It  is  however  clear, 
'-  -■  that  a  deed  making  provision  for  an  immediate  separation 
between  husband  and  wife  is  not  void  for  illegality, ((/)  and  any 
infringement  of  the  covenants  contained  in  it  will  be  restrained 
by  the  injunction  of  the  Court  of  Chancery.(r)  One  of  the  usual 
provisions  of  a  deed  of  separation  is,  a  covenant  on  the  part  of 
some  friend  of  the  wife's  to  indemnify  the  husband  against  any 
debts  she  may  incur  whilst  living  apart.  Such  a  covenant  is  a 
valuable  consideration  for  any  settlement  which  the  husband  may 
make  for  the  benefit  of  his  wife,  and  places  such  settlement  on 
the  same  footing  as  any  other  alienation  made  for  valuable  con- 
sideration.(s)  But  if  there  be  no  such  covenant,  nor  any  other 
valuable  consideration, (^)  a  settlement  made  by  a  husband  on  sep- 
arating from  his  wife  stands  in  the  same  position  as  any  other 
voluntary  deed  ;(ii)  and,  though  binding  on  himself,  may  not  be 
binding  on  his  creditors. (x)  The  circumstance  of  voluntary  sep- 
aration gives  to  the  wife  no  further  power  of  disposition  over 
property  than  she  possessed  whilst  living  with  her  husband,  (y) 
Accordingly  she  will  not,  should  she  survive  her  husband,  be 
bound  by  any  disposition  of  her  personal  estate  made  on  the  sep- 
aration, which  her  husband  would  have  been  unable  to  make, 
without  her  concurrence,  had  no  separation  taken  place.(2')     If 

(p)  Wren  v.  Bradley,  2  De  Gex  &  S.  49. 

{q)  Jones  v.  Waitt,  4  Man.  &  Gr.  1104,  E.  C.  L.  R.  vol.  43. 

,(;■)   Sanders  v.  Rodway,  16  Beav.  207. 

(s)  Stetihens  v.  Olive,  2  Bro.  C.  C.  90  ;  Worrall  v.  Jacob,  3  Meriv.  256,  269. 

(«)   See  Wilson  v.  Wilson,  14  Sim.  405 ;   1  H.  of  L.  Cas.  538. 

(u)  See  a?ite,  pp.  272,  273. 

(x)  Fitzer  v.  Fitzer,  2  Atk.  511 ;  Clough  v.  Lambert,  10  Sim.  174. 

(y)   Lord  St.  John  v.  Lady  St.  John,  11  Ves.  531. 

{z)  Stamper  v.  Barker,  5  Madd.  157 ;  Slatter  v.  Slatter,  1  You.  &  Coll.  28. 


the  wife,  he  may  also  consent  to  her  disposal  "Any  married  woman  may  dispose,  by  her 
of  the  realty  ;  Wagner  v.  Ellis,  7  Pa.  St.  R.  last  will  and  testament,  of  her  separate  prop- 
411.  erty,  real,  personal,  or  mixed,  whether  the 
In  New  Hampshire,  New  York,  Pennsylva-  same  accrues  to  her  before  or  during  covert- 
nia,  and  several  other  States,  a  feme  covert  ure  ;  provided,  that  said  last  will  and  testa- 
is  empowered,  by  statute,  to  make  a  will  of  ment  be  executed  in  the  presence  of  two  or 
her  real  or  personal  estate.  In  the  latter  more  witnesses,  neither  of  whom  shall  be  her 
State,  the  wording  of  the  act  is  as  follows:  husband."     Purd.  Dig.  (1861;,  p.  1016. 


OF   THE   MUTUAL   RIGHTS   OF   HUSBAND   AND   WIFE.  489 

after  separation  the  parties  become  reconciled, (a)  or  if  a  r^o^Q-, 
^restitution  of  conjugal  rights  be  decreed  by  the  Court  for  l  "^  -• 
Divorce  and  Matrimonial  Cau8e8,(6)  the  provisions  of  the  deed  of 
separation  will  thenceforth  become  inoperative. 

In  the  event  of  separation,  the  custody  of  the  infant  children 
belongs  by  law  to  the  father  as  the  natural  guardian. (c)  And  it 
has  been  decided  that  he  is  incompetent  to  relinquish  a  duty 
thrown  upon  him  by  the  law,  and  that,  therefore,  a  covenant  on 
his  part  to  give  up  the  children  to  the  care  of  their  mother  is  il- 
legal. (<i)  If,  however,  the  conduct  of  the  father  should  be  such 
that  the  children  would  be  exposed  to  cruelty  or  gross  corruption 
of  morals  from  being  left  in  his  custody,  the  law  will  deprive 
him  of  a  charge  for  which  he  has  shown  himself  totally  unfit. (e)^ 

(a)  Bateman  v.  Ross,  1  Dow,  235,  245  ;  Lord  St.  John  v.  Lady  St.  John,  11  Ves.  537  ; 
Wilson  V.  Wilson,  15  Sim.  487,  500  ;  1  H.  of  L.  Cas.  638.  See,  however,  Hulme  v.  Chitty, 
9  Beav.  437. 

(b)  Fletcher  v.  Fletcher,  2  Cox,  99  ;  stat.  20  &  21  Vict.  c.  85. 

(c)  Co.  Litt.  88  b,  n.  (12)  ;  Rex  v.  Sherrington,  3  Barn.  &  Adol,  714,  E.  C.  L.  R.  vol.  23. 

(d)  Lord  St.  John  v.  Lady  St.  John,  11  Ves.  531 ;  Vansittart  v.  Vansittart,  4  Kay  &  J. 
62 ;  2  De  Gex  &  Jones,  249  ;  Hope  v.  Hope,  22  Beav.  351 ;  3  Jur.  N.  S.  454,  Lords  Just. ; 
Walrond  v.  Walrond,  1  John.  18. 

(e)  Cruise  v.  Hunter,  2  Bro.  C.  C.  499  ;  Wellesley  v.  Duke  of  Beaufort,  2  Russ.  1 ;  Rex 
V.  Greenhill,  4  Adol.  &  Ell.  624,  E.  C.  L.  R.  vol.  31. 


J^  In  the  case  of  The  United  States  v.  Green,  mistake  to  suppose,  that  the  court  is  at  all 

3  Mass.   R.  485,  Judge    Story,   speaking  of  events  bound  to  deliver  over  the  infant  to  his 

this  subject,  says:  "As  to  the  question  of  the  father,    or   that   the   latter   has  an  absolute 

right  of  the  father  to  have  the  custody  of  his  vested  right  in  the  custody." 

infant  child,   in  a  general  sense  it  is  true.  The  principles  contained  in  this  decision, 

But  this  is  not  on  account  of  any  absolute  are  well  supported  by  the  authorities,  for  the 

right  of  the  father,  but  for  the  benefit  of  the  father  is,  in  general,  entitled  to  the  custody 

infant,  the  law  presuming  it  to  be  for  its  in-  of  his    child  ;    Commonwealth    v.    Nutt,    2 

terest,  to  be  under  the  nurture  and  care  of  Brown's  R.  143 ;  In  the  matter  of  Mitchell, 

his  natural  protector,  both  for  maintenance  R.  M.  Charlton's  R.  489  ;  Ahrenfelt  v.  Ahren- 

and  education.     When,  therefore,  the  court  felt,  1  Hoff.  C.  R.  497,   S.  C.  4  Sandf.  C.  R. 

is  asked  to  lend  its  aid,  to  put  the  infant  into  493  ;  The  People  v.  Mercein,  8  Paige's  C.  R. 

the  custody  of  the  father,  and  to  withdraw  47,  S.  C.  25  AYend.  R.  64,  and  3  Hill's  R.  400  ; 

him  from  other  persons,  it  will  look  into  all  The   People  v.  Chegaray  et  al.,  18  Wend  R. 

the  circumstances,  and  ascertain  whether  it    637  ;  The  People  v.  ,  19  Id.    16  ;  In 

will   be  for  the  real,  permanent  interests  of  the  matter  of  Kottman,  2  Hill's  (S.  C.)  R. 

the  infant ;  and  if  the  infant  be  of  sufficient  363  ;   The   State  v.  Paine,  4  Humph.  R.  523  ; 

discretion,   it  will  also  consult  his  personal  Miner  v.  Miner,  11  111.  R.  48  ;   The  State  v. 

wishes.     It   will  free  it  from  all  undue  re-  Stigall  et  al.,  2  Zabr.  R.  286;  Tarkington  et 

straint,  and  endeavor,    as  far  as  possible,  to  al.  v.    The  State,  1  Cart.  R.  171  ;   Valentine 

administer   a  conscientious,    parental   duty,  v.  Valentine,  2  Halst.  C.   R.  219  ;   Ex  parte 

with  reference  to  its  welfare.     It  is  an  entire  Schumpert,   6   Richard.   R.   344  ;    The  Com- 


490 


OF  PERSONAL   ESTATE   GENERALLY. 


And  by  a  recent  act  of  Parliament, (/)  power  is  given  to  the 

(/)  Stat.  2  &  3  Vict.  c.  54 ;  Ex  parte  Bartlett,  2  Coll.  661. 


monwealth  v.  Sear  (D'Hauteville  Case), 
Pamph.  1840,  Philadelphia  ;  People  v.  01m- 
stead,  27  Barb.  R.  9  j  Ex  parte  Hewitt,  11 
Rich.  L.  R.  326  ;  yet,  courts  of  justice  may 
control  this  right,  when  the  safety  or  inter- 
ests of  the  child  imperiously  require  it ;  In 
the  matter  of  Mitchell,  R.  M.  Charlton's  R. 
489;  The  People  v.  Chegaray  et  al.,  18 
Wend.  R.  637  ;  Cowls  v.  Cowls,  3  Gilm.  R. 
440  i  Miner  v.  Miner,  11  111.  R.  48  ;  Corne- 
lius V.  Cornelius,  31  Ala.  R.  479  ;  Lusk  v. 
Lusk,  28  Mo.  R.  91 ;  and  though  the  courts 
will  not  lightly  exercise  this  authority  ;  Bryan 
V.  Bryan,  34  Ala.  R.  516  ;  yet  the  interest  of 
the  child  is  the  leading  if  not  the  paramount 
consideration  ;  Wand  v.  Wand,  14  Cal.  R.  612. 
Thus,  in  cases  of  tender  infancy,  the  cus- 
tody of  the  children  may  be  given  to  the 
mother  in  preference  to  the  father  ;  Ahrenfeldt 
V.  Ahrenfeldt,  1  Hoff.  C.  R.  497,  S.  C.  4  Sandf. 
C.  R.  493  ;  Prather  v.  Prather,  4  Desauss.  R. 
33  ;  The  State  v.  Smith,  6  Greenlf.  R.  462;  The 
State  V.  Paine,  4  Humph.  R.  523  ;  Cowls  v. 
Cowls,  3  Gilm.  R.  440  ;  The  State  v.  Stigall 
et  al.,  2  Zabr.  R.  286  ;  Valentine  v.  Valen- 
tine, 4  Halst.  C.  R.  219  ;  Ex  parte  Schumpert, 
6  Richard.  R.  344  ;  Commonwealth  v.  Sears 
(D'Hauteville  Case),  Pamph.  1840,  Philad'a  ; 
Levering  v.  Levering,  16  Md.  R.  213.  In 
The  Commonwealth  v.  Addicks,  5  Bin.  R. 
520,  the  court  gave  the  custody  of  two  female 
children,  one  of  ten  and  the  other  of  seven 
years  of  age,  to  the  mother,  notwithstanding 
her  husband  had  been  divorced  from  her  for 
her  adultery  ;  and,  three  years  subsequently, 
delivered  them  to  the  care  of  their  father, 
"  the  children  no  longer  requiring  those  at- 
tentions which  a  mother  alone  can  properly 
bestow,  and  having  arrived  at  an  age  when 
their  morals  were  likely  to  be  injured  by  bad 
example;"  Commonwealth  v. Addicks  et  al., 
2  Serg.  &  Raw.  R.  174;  Mercein  v.  The 
People,  25  Wend.  R.  64,  and  S.  C.  3  Hill's 
R.  400  ;  People  v.  Humphreys,  24  Barb.  R. 
521  ;  and  female  children,  of  somewhat  ad- 
vanced age,  have  sometimes  been  held  to 
require  the  society  and  sympathy  of  their 
mother,  as  was  held  in  Miner  v.  Miner,  11 
Illinois  R.  48,  where  Caston,  J.,  says,  "An 


infant  of  tender  years  is  generally  left 
with  the  mother  (if  no  objection  to  her  is 
shown  to  exist) ,  even  when  the  father  is 
without  blame,  merely  because  of  his  in- 
ability to  bestow  upon  it  that  tender  care 
which  nature  requires,  and  which  it  is  the 
peculiar  province  of  the  mother  to  supply. 
This  remark  will  apply  with  much  force,  in 
cases  of  female  children  of  a  more  advanced 
age.  While  the  afTections  of  parents  for 
daughters  may  be  equal,  yet  the  mother, 
from  her  natural  endowments,  her  position  in 
society,  and  her  constant  association  with 
them,  can  give  them  that  care,  attention,  and 
advice,  so  indispensable  to  their  welfare, 
which  a  father,  if  the  same  children  were  left 
to  his  supervision,  would  be  compelled,  in  a 
great  degree,  to  confide  to  strangers."  So, 
where  the  father  is  leading  a  grossly  immoral 
life,  and  the  mother  is  a  virtuous  woman,  she 
shall  have  the  care  and  control  of  the  chil- 
dren ;   Williams  v.  Williams,  4  Desauss.  R, 

183  ;  The  People  v. ,  19  Wend.  R.  16  j 

or  if  the  father  maltreats  the  children,  or 
seeks  to  maintain  possession  of  them  for  an 
ill  purpose,  he  may  be  deprived  of  their  com- 
pany ;    The  People  v.  ,   19   Wend.  R. 

16  ;  In  the  matter  of  Kottman,  2  Hill's  (S. 
C.)  R.  363  ;  Codd  v.  Codd,  2  Johns.  C.  R. 
141 ;  and  in  a  case  where  a  child  lived  with 
its  maternal  grandfather,  the  mother  being 
dead,  and  this  was  the  only  grandchild,  the 
grandfather  being  rich,  the  court  refused  to 
give  the  custody  of  the  child  to  the  father, 
who  was  insolvent,  although  the  paternal 
grandmother  was  able  and  willing  to  main- 
tain it ;  upon  the  ground  that  the  child's 
future  prospects  might  be  injured  by  such  a 
decree  ;  In  the  matter  of  Waldron,  13  Johns. 
R.  418  ;  it  seems,  also,  that  a  father  will  not 
be  allowed  to  keep  his  child  if  he  cannot  sup- 
port it ;   The  People  v. ,  19  Wend.  R. 

16  ;  but  in  Sandford  v.  Lebanon,  31  Maine  R. 
124,  it  was  decided,  that,  although,  from  the 
inability  of  a  father  to  support  his  children, 
they  had  been  in  the  care  of  the  overseers  of 
the  poor,  as  paupers,  he  did  not,  thereby,  lose 
his  right  to  have  the  custody  of  them  ;  but 
where  the  custody  of  a  child  was  awarded  to 


OF    THE   MUTUAL   RIGHTS   OF   HUSBAXD   AND   WIFE. 


491 


judges  of  the   Court  of  Chancer j{rf),  upon  the  petition  of  the 

(£)  In  Re  Taylor,  10  Sim.  291. 


the  mother,  it  was  held,  in  the  absence  of  evi- 
dence to  the  contrary,  at  least  to  relieve  the 
father  from  the  obligation  to  furnish  support 
upon  the  call  of  the  mother;  Burritt  v.  Bur- 
ritt,  29  Barb.  R.  124.  In  the  State  of  Penn- 
sylvania, if  a  father  cannot  command  or  con- 
trol his  children,  they  may  be  sent  to  the 
House  of  Refuge;  Ex  parte  Grouse,  4  Whart. 
R.  9.  The  above  doctrines  do  not,  however, 
apply  to  a  stepfather,  who  is  neither  entitled 
to  the  custody  of  his  wife's  children,  nor 
liable  for  their  support ;  Williams  v.  Hutch- 
inson, 3  Comst.  R.  312. 

After  the  father,  the  mother  is,  by  law,  en- 
titled to  the  custody  of  the  children  ;  Dedham 
V.  Nantick,  16  Mass.  R.  135  ;  Nightingale  v. 
Withington,  15  Id.  272  ;  Miner  v.  Miner,  11 
111.  R.  48;  The  Commonwealth  v.  Fee,  6 
Serg.  &.  Raw.  R.  254 ;  Armstrong  v.  Stone,  9 
Gratt.  R.  102 ;  and  this  is  the  case,  even 
where  there  is  a  testamentary  guardian ; 
Foster  v.  Alston,  6  How.  (Missi.)  R.  406. 
Where,  however,  both  father  and  mother  are 
persons  of  immoral  character,  the  court  may, 
in  a  dispute  between  them,  order  a  child  to 
be  taken  care  of  by  some  third  person ;  The 
Commonwealth  v.  Nutt,  1  Browne's  R.  143. 

In  New  York,  in  cases  of  separation,  or 
divorce,  of  man  and  wife,  the  court  is,  by 
statute,  gifted  with  a  discretionary  power  of 
determining  who  shall  have  the  child,  or 
children,  of  the  marriage.  In  Ahrenfeldt  v, 
Ahrenfeldt,  1  Hoff.  C.  R.  497,  S.  C.  4.  Sandf. 
C.  R.  493,  the  vice-chancellor,  in  commenting 
upon  this  statute,  says:  "The  language  of 
the  present  act  is,  that,  in  any  suit  brought 
by  a  married  woman  for  divorce,  or  for  a  sep- 
aration from  her  husband,  the  court  may, 
during  the  pendency  of  the  cause,  or  at  its 
final  hearing,  or  afterwards,  as  occasion  may 
require,  make  such  order  as  between  the  par- 
ties, for  the  custody,  care,  and  education  of 
the  children  of  the  marriage,  as  may  seem 
necessary  and  proper,  and  may  vary  and 
annul  the  same."  (2  R.  S.  148,  sec.  59.) 
"  I  look  upon  this  statute,  especially  where  a 
decree  has  been  pronounced  for  a  separation, 
as  neutralizing  the  rule  of  the  common  law  ; 
as  annulling   the  superiority  of  the  ^^airi'ce 


potestas,  and  placing  the  parents  upon  an 
equality  as  to  the  future  custody  of  the  chil- 
dren, even  if  it  does  not  create  a  presumption 
in  favor  of  the  wife.  And  this  is  the  case, 
because  no  decree  for  a  separation  can  be 
pronounced,  without  evidence  of  such  a  vio- 
lation of  duty,  in  one  relation  of  life,  as 
implies    a    probability    of    the   disregard   of 

every  other Under  our  statute,  this 

court  might  make  the  children  wards  of  the 
court,  appointing  a  guardian  of  their  persons 
and  estates,  and  regulating  the  right  of  ac- 
cess of  both  parents.  It  seems,  however, 
that  this  power  will  be  exercised,  only  in 
cases  of  a  separation  of  husband  and  wife  by 
judicial  decree,  or  by  mutual  consent;  and 
not  where  the  wife,  of  her  own  accord,  with- 
out justifiable  cause,  withdraws  herself  from 
the  protection  of  her  husband."    The  People 

V. ,  19  Wend.  R.  16.     And  see,  Barrere 

V.  Barrere,  4  Johns.  C.  R.  187 ;  Cook  v. 
Cook,  1  Barb.  C.  R.  639  ;  People  v.  Brooks, 
35  Barb.  R.  85.  Similar  statutes  exist  in  the 
States  of  Illinois  and  Indiana  ;  Miner  v.  Mi- 
ner, 11  111.  R.  48;  Tarkington  et  al.  v.  The 
State,  1  Cart.  R.  171. 

It  would  seem,  also,  that  an  agreement 
between  parents,  upon  a  separation,  as  to 
the  custody  of  their  children,  is  void.  This 
question  was  raised  in  Mercein  v.  The  People, 
25  Wend.  R.  64,  and  was  subsequently  de- 
cided in  the  negative,  in  the  same  case,  re- 
ported in  3  Hill's  R.  400.  The  more  recent 
suit  of  Cook  V.  Cook,  1  Barb.  C.  R.  639,  de- 
cided, that  such  an  agreement  can  have  no 
effect  upon  the  discretion  of  the  court,  under 
the  New  York  statute.  The  State  v.  Smith, 
6  Greenlf.  R.  462,  leans  to  the  other  side,  but 
is  not  decisive. 

The  writ  of  habeas  corpus,  is  for  the  pur- 
pose of  relieving  a  person  from  an  unlawful 
restraint ;  consequently,  on  such  a  writ,  the 
court  will  not,  in  general,  determine  who  is 
entitled  to  the  guardianship  of  the  child,  but 
will  release  him  from  illegal  confinement ;  In 
the  matter  of  McDowles,  8  Johns.  R.  328 ; 
In  the  matter  of  Wollstonecraft,  4  Johns.  C. 
R.  SO  ;  Ex  parte  Schumpert,  6  Richard.  R. 
344 ;  Armstrong  v.  Stone,  9  Gratt.  R.  102 ; 


492  OF   PERSONAL   ESTATE    GENERALLY. 

mother  of  any  infant,  being  in  tlie  sole  cnstodj  of  the  father,  or 
of  any  person  by  his  authority,  or  of  any  guardian  after  the  death 
of  the  father,  to  make  order  for  the  access  of  the  petitioner  to 
such  infant,  at  such  time  and  subject  to  such  regulations  as  shall 
be  deemed  convenient  and  just;  and,  if  such  infant  shall  be  within 
the  age  of  seven  years,  to  make  order  that  such  infant  shall  be 
delivered  to  and  remain  in  the  custody  of  the  petitioner  until  at- 
taining such  age,  subject  to  such  regulations  as  shall  be  deemed 
r*Qfini  convenient  and  just.  If  adultery  has  been  *established 
'-  -^  against  the  mother,  no  order  can  be  made  in  her  favor 
under  this  act, (A) 

The  jurisdiction  anciently  possessed  by  the  ecclesiastical  courts 
over  matrimonial  causes  has  been  recently  transferred  to  a  new 
court,  called  the  Court  for  Divorce  and  Matrimonial  Causes, 
which  has  been  established  since  the  eleventh  of  January,  1858. (?') 
Instead  of  the  ancient  decree  for  a  divorce  d  mensa  et  thoro,  a 
decree  for  a  judicial  separation  has  been  substituted,  which  has 
the  same  force  and  consequenees.(/i;)  The  very  doubtful  benefit 
formerly  enjoyed  only  by  the  richer  classes  of  obtaining  by  act  of 
Parliament  a  dissolution  of  the  marriage  with  liberty  to  marry 
again,  is  now  extended  to  all  persons  by  petition  to  the  court.(/) 
A  beneficial  provision  has,  however,  been  inserted  empowering  a 
woman,  who  has  been  deserted  by  her  husband,  to  apply  to  a 
magistrate  or  to  the  court  or  the  judge  ordinary  thereof,  for  an 
order  to  protect  any  money  or  property  she  maj^^  acquire  by  her 
own  lawful  industry,  and  property  which  she  may  become  pos- 
sessed of  after  such  desertion,  against  her  husband  or  his  credi- 
tors; and  in  such  case  her  earnings  and  her  property,  whether 

(A)   Stat.  2  &  3  Vict.  c.  54,  s.  4. 

(i)  Stat.  20  &  21  Vict.  c.  85,  amended  by  stats.  21  &  22  Viet.  e.  108  ;  22  &  23  Viet.  e.  61. 

(ifc)   Stat.  20  &  21  Vict.  c.  85,  s.  7. 

{I)  Sects.  27,  57. 


Nicholls  V.  Nicholls,  3  Duer's  R.  642;  and  Mass.  R.  273;  The  State  v.  Stigall  et  al.,  2 
the  child,  being  of  sufficient  age,  will  thus  be  Zabr.  R.  286  ;  Ex  parte  Schumpert,  6  Rich- 
allowed  to  go  where  he  chooses ;  lu  the  mat-  ard.  R.  344 ;  Armstrong  v.  Stone,  9  Gratt. 
ter  of  McDowles,  8  Johns.  R.  328 ;  In  the  R.  102  ;  but  if  the  child  is  not  of  sufficient 
matter  of  Wollstonecraft,  4  Johns.  C.  R.  80  ;  age  to  decide  for  itself,  the  court  will  deter- 
In  the  matter  of  Kottman,  2  Hill's  (S.  C.)  mine  what  is  for  its  interest.  See  cases  just 
R.  363 ;  The  Commonwealth  v.  Hamilton,  6  cited. 


OF    THE   MUTUAL   RIGHTS   OF   HUSBAND   AND   WIFE.  493 

held  beneficially,  or  as  executrix,  administratrix,  or  trustee,  and 
whether  in  possession  or  reversion,  will  belong  to  herself  ^as  if 
she  were  a  feme  sole.(m)  In  every  case  of  a  decree  either  for 
judicial  separation  or  for  the  dissolution  of  the  marriage,  the 
court  has  power  to  order  the  husband  to  secure  to  the  wife  for 
her  life  a  separate  maintenance  under  the  name  of  alimony.(w) 
And  in  every  case  of  *a  judicial  separation  the  wife  is,  p-^q/^-i-i 
from  the  date  of  the  sentence  and  whilst  separated,  to  be  ^  -^ 
considered  as  a  feme  sole  with  respect  to  her  property,  whether 
held  beneficially,  or  as  executrix,  administratrix,  or  trustee,  and 
also  for  the  purposes  of  contract,  and  wrongs  and  injuries,  and 
suing  and  being  sued  in  any  civil  proceeding;  and  her  property 
may  be  disposed  of  by  her  in  all  respects  as  a  feme  sole,  and  on 
her  decease  the  same  will,  in  case  she  shall  die  intestate,  go  as  it 
would  have  gone  if  her  husband  had  then  been  dead.(o)  If,  how- 
ever, alimony  has  been  ordered  to  be  paid  to  the  wife,  and  the 
same  shall  not  be  duly  paid  by  the  husband,  he  will  be  liable  for 
necessaries  supplied  for  her  use.  But  the  wife  may,  during  such 
separation,  join  with  the  husband  in  the  exercise  of  any  joint 
power  given  to  herself  and  him.(2J)  And  if  the  wife  should 
again  cohabit  with  her  husband,  all  such  property  as  she  may  be 
entitled  to  when  such  cohabitation  shall  take  place,  shall  be  held 
to  her  separate  use,  subject,  however,  to  any  agreement  in  writ- 
ing made  between  herself  and  her  husband  whilst  separate.(5') 
In  every  case  of  a  suit  for  judicial  separation  or  for  nullity  or  dis- 
solution of  marriage,  the  court  or  the  judge  ordinary  is  empow- 
ered, either  before  or  after  its  final  decree,  to  make  provision 
with  respect  to  the  custody,  maintenance,  and  education  of  the 
children  of  the  marriage,  or  for  placing  the  children  under  the 
protection  of  the  Court  of  Chancery.(r)  Whenever  the  court 
shall  pronounce  a  sentence  of  divorce  or  judicial  separation  for 
adultery  of  the  wife,  it  has  power  to  order  a  settlement  to  be 
made  of  her  property,  whether  in  possession  or  reversion,  for  the 
benefit  of  the  innocent  party  and  the  children  of  the  marriage,  or 

(w)  Stat.  20  &  21  Vict.  c.  85,  s.  21  ;  21  &  22  Vict,  c.  108,  ss.  6,  7,  8,  9,  10 ;  Re  Kingsley's 
Trust,  26  Beav.  84  ;  Cooke  v.  Fuller,  26  Beav   99. 
(n)   Stat.  20  &  21  Vict.  c.  85,  ss.  24,  32. 

(o)  Stat.  20  &  21  Vict.  c.  85,  ss.  25,  26  ;  21  &  22  Vict.  c.  108,  s.  7. 
(;;)   Stat.  20  k  21  Vict.  c.  85,  s.  26. 
(q)   Sect.  25. 
(r)  Stat.  20  &  21  Vict.  c.  85,  s.  35  ;  22  &  23  Vict.  c.  61,  s.  4. 


494  OF   PERSONAL   ESTATE   GENERALLY. 

j-^  either  or  any  of  tliem.(5)     And  any  *iustriiment  executed 

-'  pursuant  to  any  order  of  the  court  made  under  this  enact- 
ment, at  the  time  of  or  after  the  pronouncing  of  a  final  decree 
of  divorce  or  judicial  separation,  shall  he  deemed  valid  and  effect- 
ual in  the  law,  notwithstanding  the  existence  of  the  disahility  of 
coverture  at  the  time  of  the  execution  thereof. (^)  And  after  a 
decree  of  nullity  or  dissolution  of  marriage,  the  court  may  in- 
quire into  the  existence  of  antenuptial  or  postnuptial  settlements 
made  on  the  parties  whose  marriage  is  the  subject  of  the  decree, 
and  may  make  such  order  with  reference  to  the  application  of 
the  whole  or  a  portion  of  the  property  settled  either  for  the  ben- 
efit of  the  children  of  the  marriage  or  of  their  respective  parents, 
as  to  the  court  shall  seem  fit.(^<) 

A  comparison  of  the  laws  of  husband  and  wife  relating  to  real 
estate,  with  those  which  affect  personal  property,  will  show  a 
great  discrepancy  between  them.  Historicalh^,  no  doubt,  this 
discrepancy  is  easily  accounted  for;  but  practically,  as  things  now 
exist,  it  is  not  so  easy  to  give  a  satisfactory  reason  for  the  differ- 
ence. Since  the  intended  amendment  of  the  law  relating  to 
dower,  the  wife's  rights  in  her  husband's  real  estate  have,  for  the 
satisfaction  of  conveyancers,  been  reduced  to  as  low  a  level  as  her 
rights  in  his  personalty.  But  the  husband's  rights  in  his  wife's 
property  still  materially  vary,  according  as  it  may  happen  to  be 
invested  in  real  or  in  personal  estate.  If  it  consist  of  real  estate, 
he  has  only  a  life  interest  as  tenant  by  the  curtesy,  provided  he 
has  issue  by  his  wife  born  alive,  who  might  by  possibility  inherit 
as  her  heir.(i))  If  it  be  personal  estate,  he  has  a  right  to  appro- 
priate to  himself  all  that  he  can  lay  hands  on.  Again,  the  real 
estate  of  the  wife  is  guarded  from  ^alienation  by  the  most 
^  -^  careful  provisions.  Formerly  the  fictitious  and  cumber- 
some machinery  of  a  fine  was  requisite ;  and  now  every  convey- 
ance of  her  real  estate  must  be  not  only  signed  by  her,  but  also 
acknowledged  by  her  before  commissioners,  apart  from  her  hus- 

(«)  Stat.  20  &  21  Vict.  c.  85,  s.  45. 

(0   Stat.  23  &  24  Vict.  c.  144,  s.  6,  made  perpetual  by  stat.  25  &  26  Viet.  c.  81. 
(u)  Stat.  22  &  23  Vict.  c.  61,  s.  5. 

(V)  See  Principles  of  the  Law  of  Real  Property,  167,  1st  ed.  ;   177,  2d  ed.  ;  184,  3d  ed.  j 
185,  4th  ed. ;  193,  5th  ed. ;  203,  6th  ed. 


OF   THE    MUTUAL   EIGHTS   OF   HUSBAND   AND   WIFE.  495 

band,  as  her  own  act  and  deed. (3:)^  Recently  the  same  principle 
has  been  applied  to  the  release  of  her  equity  to  a  settlement,  and 
to  the  assignment  of  her  reversionary  interests. (2/)  But,  in  all 
cases  not  within  the  act  for  these  purposes,  the  assignment  of  her 
personal  estate,  if  made  at  all,  can  only  be  made  by  her  husband; 
and  her  concurrence  or  objection  is  quite  immaterial.  When 
personal  estate  consists  of  mere  movable  articles,  the  nature  of 
the  property  no  doubt  afibrds  a  sufficient  reason  for  the  difference 
between  the  laws  which  dispose  of  it,  and  those  which  regulate 
estates  in  fixed  and  immovable  landed  property.  But  when  per- 
sonalty assumes  the  form  of  such  solid  investments  as  mortgages  or 
consols,  when  it  becomes  like  land  disposable  by  deed  rather  than 
by  delivery,  the  laws  which  affect  it  should  rather  depend  on  its 
present  nature  than  on  its  past  history.  It  seems  hardly  fair  that 
a  married  woman  should  have  no  voice  in  the  disposition  of  prop- 
erty of  this  kind  belonging  to  herself.  At  the  same  time,  the 
present  system  of  taking  her  acknowledgment  on  a  conveyance 
of  her  real  estate  is  often  found  to  be  a  burdensome  expense 
without  any  practical  benefit.  For  if  a  husband  can  persuade 
his  wdfe  to  sign  a  deed,  he  can  easily  prevail  on  her  to  make  an 
acknowledgment  before  two  commissioners,  notwithstanding  that 
during  the  two  minutes  which  the  transaction  lasts  she  may  re- 
main "separate  and  apart"  from  him.  If,  whenever  the  wife's 
property  of  any  kind  should  be  alienated  by  deed,  her  signature 
were  necessary,  but  her  separate  examination  *were  dis-  r-^cynA-t 
pensed  with,  the  law  both  of  personal  and  real  estate  *-  -' 
would  perhaps  be  improved.  The  Court  of  Chancery,  by  the  es- 
tablishment of  trusts  for  separate  use,  and  by  giving  the  wife  an 
equity  to  a  settlement  of  part  of  her  personal  property  when 
claimed  through  the  medium  of  that  court,  has  done  much  to 
mitigate  the  simple  rigor  of  the  common  law.  Trusts  for  sepa- 
rate use  are  now,  after  much  wavering,  firmly  settled,  it  is  to  be 

(a;)  Ibid.,  171,  Isted.  ;  181,  2d  ed.  ;  188,  3d  ed.  ;  189,  4th  ed.  ;  197,  5th  ed.  ;  207,  6th  ed. 
(y)  Stat.  20  &  21  Vict.  c.  57.      Atite,  p.  350. 


1  In  general,  throughout  the  United  States,  tice  of  the  peace,  as  the  case  may  be.     The 

the  acknowledgment  of  a  married  woman  to  method  in  which  this  is  to  be  done,  is  pointed 

a  deed  conveying  her  real  estate,  is  to  be  out  with   precision  in  the  statutes  of  each 

taken  separate  and  apart  from  her  husband,  State, 
by  a  judge,  commissioner,  alderman,  or  jus- 


496  OF   PERSONAL  ESTATE   GENERALLY. 

hoped,  into  a  system  according  both  with  the  interests  of  the 
community  and  the  general  principles  of  the  law.  Such  trusts, 
however,  generally  require  to  be  established  by  deed  or  will,  and 
are  very  seldom  implied.  And  the  wife  cannot  assert  her  equity 
to  a  settlement  without  taking  the  serious  step  of  making  an  ap- 
plication to  the  Court  of  Chancery. .  The  theory  of  that  court 
certainly  is,  that  its  assistance  is  free  and  open  to  everybody,  and 
that  those  who  neglect  to  avail  themselves  of  its  aid  suffer  by 
their  own  fault.  Experience,  however,  is  too  apt  to  suggest  that 
the  remedy  may  sometimes  prove  worse  than  the  disease. 


PART    y.  [*365] 


OF    TITLE. 


The  title  to  personal  estate  varies  according  as  it  may  consist 
of  money  or  negotiable  securities,  or  of  ordinary  choses  in  pos- 
session, or  of  choses  in  action. 

And  first,  with  regard  to  money  or  negotiable  securities,  no 
title  at  all  is  required  to  be  shown  by  the  payer  in  any  bond  fide 
transaction.  Thus,  if  a  sovereign  or  a  bank  note  be  offered  in 
payment  of  a  debt,  it  is  no  part  of  the  duty  of  the  creditor,  under 
ordinary  circumstances,  to  ask  the  debtor  how  he  came  by  it. 
The  reason  of  this  rule  is  founded  on  the  currency  of  the  articles 
in  question,  and  on  the  great  inconvenience  to  trade  and  com- 
merce which  would  ensue  if  the  rule  were  otherwise.(a)  And 
the  rule  applies  to  all  negotiable  securities,  that  is,  to  all  instru- 
ments the  delivery  of  which  passes  the  legal  right  to  the  property 
secured  by  them.  Promissory  notes  and  bills  of  exchange  pay- 
able to  bearer,  or  payable  to  order,  and  indorsed  in  blank,  are 
accordingly  within  the  rule.(6)  But  if  there  be  any  mala  fides 
on  the  part  of  the  person  receiving  any  money  or  negotiable 
security,  or  such  gross  negligence  as  may  amount  in  itself  to 
evidence  of  mala  fides,  the  true  owner  may  recover  such  property, 
provided  its  identity  can  be  ascertained. (c)^    A  delivery  order 

(a)  Miller  v.  Race,  1  Burr.  452  ;  1  Smith's  Leading  Gas.  250. 

(6)  Grant  v.  Vaughan,  3  Burr.  1516  ;  Peacock  v.  Rhodes,  2  Doug.  333  ;  see  ante,  p.  79. 
(c)   Clarke  v.  Shee,  Cowp.  197 ;  Foster  v.  Pearson,  1  C.  M.  &  R.  849  ;  S.  C.  5  Tyrw.  255  ; 
Goodman  v.  Harvey,  4  Ad.  &  Ell.  870,  E.  C.  L.  R.  vol.  31. 

1  See  Mauran  v.  Lamb,  7  Cow.  R.  174  ;  ren,  Id.  259  ;  Thurston  v.  McKown,  6  Mass. 

Pearce  v.  Austin,  4  Wheat.  R.  489  ;  Barbarin  R.  428  ;  Wheeler  v.  Guild,  20  Pick.  R.  645  ; 

V.  Daniels,  7  La.  R.  481 ;  Denton  v.  Duplessis,  Aklrich  v.  Warren,  16  Maine  R.  465  ;   Lapice 

12  Id.  92  ;  Hill  V.  Holmes,  Id.  96  ;  Cruger  v.  v.  Clifton,  17  La.  R.  152  ;  Munroe  v.  Cooper, 

Armstrong,  3  Johns.  Gas.  5  ;  Gonroy  v.  War-  5  Pick.  R.  412 ;  Story  on  Bills,  215  j   Story 

32 


498 


OF   TITLE. 


does  *uot  of  itself  pass  the  property  in  the  goods  men- 
'-  -^  tioned  in  it;  it  is  therefore  not  a  negotiable  security  within 
the  rule  above  mentioned;  and  the  transferree  is  accordingly 
bound  to  inquire  into  the  title  of  the  transferror. ((i) 

"With  regard  to  ordinary  choses  in  possession,  a  valid  title  to 
them  is  generally  obtained  by  a  purchase  in  an  open  market,  or 
market  overt,  although  no  property  may  have  been  possessed  by 
the  vendor.(e)^  And  every  shop  in  the  city  of  London,  where 
goods  are  openly  sold,  is  considered  as  a  market  overt  within 
this  rule,  for  such  things  as  by  the  trade  of  the  owner  are  put 
there  for  sale.(/)     But  the  shops  at  the  west  end  of  the  town  do 


{d)  Kingsford  v.  Merry,  1  H.  &  N.  503. 
(e)   2  Black.  Com.  449. 

(/)  The  Case  of  Market  Overt,  5  Rep.  8-3  b  ;  Lyons  v.  De  Pass,  11  Ad.  k  Ell.  326,  E.  C. 
L.  R.  vol.  39. 


on  Promissory  Notes,  465,  469,  470  ;  HoflFman 
V.  Foster  k  Co.,  43  Pa.  St.  R.  137.  The 
doctrine  that  possession  carries  with  it  the 
evidence  of  property,  so  as  to  protect  a  per- 
son acquiring  it  in  the  usual  course  of  trade, 
is  limited  to  cash,  bank  bills,  and  bills  paya- 
ble to  bearer  ;  Saltus  at  al.  v.  Everett,  20 
Wend.  R.  268  ;  and  the  securities  commonly 
called  coupon  bonds.  See,  also.  County  of 
Beaver  v.  Armstrong,  44  Pa.  St.  R.  63 ;  Mur- 
ray V.  Lardner,  2  Wallace's  U.  S.  R.  110  ; 
Mercer  County  v.  Hacket,  1  Wallace's  U.  S.  R. 
83  ;  <5elpclje  v.  City  of  Dubuque,  Id.  175  ; 
Meyer  v.  Oity  of  Muscatine,  Id.  384 ;  Note 
1  ante,  pp.  5  and  25. 

1  There  are  no  markets  overt  in  the  United 
States  ;  Hosack  v.  Weaver,  1  Yeat.  R.  478  ; 
Hardy  v.  Metzgar,  2  Id.  347  ;  Easton  v. 
Worthington,  5  Serg.  k  Raw.  R.  130  ;  Lecky 
V.  McDermott,  Admr.,  8  Id.  500  ;  Mowry  et 
al.  V.  Walsh,  8  Cow.  R.  238  ;  Wheelright  v. 
Depeyster,  1  Johns.  R.  480  ;  Dane  v.  Bald- 
win, 8  Mass.  R.  518  ;  Browning  v.  Magill,  2 
Har.  k  Johns.  R.  308  ;  McGrew  v.  Browder, 
2  Condens.  Rep.  S.  C.  La.  579  ;  Roland  v. 
Grundy,  5  0.  R.  202  ;  Griffith  v.  Fowler,  18 
Vt.  R.  390  ;  Worthy  et  al.  v.  Johnson  et  al., 
S  Geo.  R.  236  ;  Hoffman  et  al.  v.  Carow,  22 


Wend.  R.  2S5.  In  the  case  of  Ventress  et 
al.  V.  Smith,  10  Pet.  R.  175,  Judge  Thomp- 
son said:  "It  is  a  general  rule  of  law,  that 
a  sale  by  a  person  who  has  no  right  to  sell,  is 

not  valid  against  the  rightful  owner 

It  was  a  maxim  of  the  civil  law,  that,  7iemo 
plus  juris  ill  alium  transferre  potest,  quam 
ipse  habet ;  and  this  is  a  plain  dictate  of 
common  sense.  It  was  a  principle  of  the 
English  common  law,  that  a  sale  out  of 
market  overt,  did  not  change  the  property 
from  the  righful  owner  ;  and  the  custom  of 
the  city  of  London,  which  forms  an  exception 
to  the  general  rule,  has  always  been  guarded 
and  restricted  by  the  courts  with  great  care 
and  vigilance,  that  all  such  sales  should  be 
brought  strictly  within  the  custom.  It  has 
sometimes  been  contended,  that  a  bona  fide 
purchase  for  a  valuable  consideration  and 
without  notice,  was  equivalent  to  a  purchase 
in  market  overt  under  the  English  law,  and 
bound  the  property  against  the  party  who 
had  the  right.  But  we  are  not  aware  that 
this  Saxon  institution  of  markets  overt,  which 
controls  and  interferes  with  the  application 
of  the  common  law,  has  ever  been  recognized 
in  any  of  the  United  States,  or  received  any 
judicial  sanction." 


OF    TITLE.  499 

not  appear  to  possess  this  privilege.  If  the  sale  is  not  made  in 
market  overt,  the  purchaser,  though  he  purchase  bona  Jide,  ac- 
quires no  further  property  in  the  article  sold  than  was  possessed 
by  the  vendor.(^^)  And  formerly,  if  a  v^rit  of  execution  should 
have  been  actually  in  the  hands  of  the  sheriff  on  a  judgment 
against  the  vendor,  the  goods,  if  not  sold  in  market  overt,  were 
subject,  in  the  hands  of  the  purchaser,  to  the  8herift''8  right  to 
seize,  in  the  same  manner  as  if  they  had  remained  in  the  hands 
of  the  vendor.(A)  But  a  recent  enactment  now  protects  a  pur- 
chaser bona  Jide  for  valuable  consideration,  without  notice  of  any 
writ.(?)  So  if  the  goods  have  been  stolen,  a  bona  Jide  purchaser, 
who  has  not  bought  them  in  market  overt,  will  be  bound  to  re- 
store them  to  the  true  owner;(A;)  whereas,  a  sale  in  market  overt 
would  have  given  the  *purchaser  a  valid  title.  There  is 
one  case,  however,  in  which  even  a  sale  in  market  overt  '-  -• 
will  not  protect  a  purchaser,  namely,  the  case  of  the  goods  having 
been  stolen,  and  the  true  owner  prosecuting  the  thief  and  obtain- 
ing his  conviction.  In  this  case  the  property  in  the  goods,  wher- 
ever they  may  be,  vests,  on  the  conviction,  in  the  true  owner;(^) 
and  the  only  exception  allowed  is,  where  the  article  stolen  is 
some  valuable  security,  which  shall  have  been  paid  or  discharged 
T)onaJide  by  the  person  liable,  or,  being  a  negotiable  instrument, 
shall  have  been  bona  Jide  transferred  or  delivered  for  a  just  and 
valuable  consideration,  without  any  notice,  and  without  any  rea- 
sonable cause  to  suspect  that  the  same  had  been  obtained  by  any 
felony  or  misdemeanor.(m)  If  a  person  suffer  the  loss  of  his 
goods  by  theft,  he  cannot  by  any  civil  action  recover  them  from 
the  felon. (w)  To  do  this,  he  is  bound  to  suffer  the  further  loss  of 
time  or  money  incurred  in  a  prosecution.  K  he  should  succeed 
in  obtaining  a  conviction,  he  is  then  rewarded  for  his  good  for- 


(g)  Peer  v.  Humphrey,  2  Ad.  &  Ell.  495,  E.  C.  L.  R.  rol.  29 ;  White  v.  Spettigue,  13 
Mee.  &  W.  603. 

(h)  Samuel  v.  Duke,  3  Mee.  &  W.  622.     See  a7ite,  p.  48. 

(»')  Stat.  19  &  20  Vict.  c.  97,  s.  1,  arde,  p.  49,  not  retrospective ;  Williams  v.  Smith,  2  H. 
&  N.  443. 

0)  White  V.  Spettigue,  13  Mee.  &  W.  603. 

{/)   Scattergood  v.  Sylvester,  15  Q.  B.  506,  E.  C.  L.  R.  vol.  6.9. 

(m)  Stat.  7  &  8  Geo.  IV,  c.  29,  s.  57. 

(w)   Stone  V.  Marsh,  6  Barn.  &  Cress.  551,  564;  2  Wms.  Saund.  47  b,  n.  (p). 


500  OF   TITLE. 

tune  hj  a  restitution  of  liis  property,  whether  in  the  hands  of  the 
felon  himself,  or  of  any  innocent  purchaser  who  may  have  chanced 
to  buy  them,  although  in  open  market.^  Such  is  the  application 
made  by  the  law  of  the  righteous  principle  of  restitution. 

With  regard  to  horses,  a  sale  in  market  overt  will  not  confer  on 
the  purchaser  any  further  title  than  is  possessed  by  the  vendor, 
unless  the  sale  be  made  according  to  the  directions  of  certain 
8tatutes.;(o)  and  even  then  the  true  owner  may,  at  any  time  with- 
in six  months  after  his  horse  has  been  stolen,  recover  his  property 
i-^  -.  on  tender  *to  the  person  in  possession  of  the  price  he  bona 
'-        -^Jide  paid  for  it.{p) 

A  factor  or  agent  in  possession  of  goods  could  not  by  the  com- 
mon law  give  any  further  title  to  the  goods  than  he  was  authorized 
to  do  by  his  principal,  either  expressly  or  by  implication  arising 
from  the  usual  course  of  employment.(5')  And  when  one  man  is 
appointed  the  agent  of  another  for  any  particular  purpose  by 
power  of  attorney,  his  authority  must  still  be  strictly  pursued, 
otherwise  his  principal  will  not  be  bound. (r)^  But  by  modern 
acts  of  Parliament  a  more  extended  authority  has,  for  the  con- 
Co)  stats.  2  &  3  p.  &  M.  c.  7 ;  31  Eliz.  c.  12 ;  2  Black.  Com.  450. 
{p)  Stat.  31  Eliz.  c.  12,  s.  4.  • 

(q)  Pickering  v.  Busk,  1.5  East,  38,  43. 
(/•)  Attwood  V.  Mannings,  7  Barn.  &  Cress.  278,  E.  C.  L.  R.  vol.  14. 


1  Bell  V.  Troy,   35  Ala.   R.   184;  and  see  not  chargeable  with  the  conduct  of  the  prose- 

Piscataqua  Bank  v.   Turnley,   1    Miles's  R.  cution,  he  cannot  be  affected  by  the  result, 

314,  which  decided,  that  where  one  had  stolen  even    though    it   be    a  verdict    of  acquittal, 

a  quantity  of  bank  notes,  the  bank  could  not  But  in  New  York,  the  doctrine  that  the  pri- 

maintain  foreign  attachment  against  him,  be-  vate  injury  is  merged  in  the  public  wrong,  is 

cause  the  foundation  of  the  claim  was  matter  abolished  by  statute ;  see  a  note  to  the  case 

ex  delicto;  and  in  the  comparatively  recent  of  Hoffman  et  al.  v.  Carow,  22  Wend.  R.  285. 

case  of  Hutchinson  v.  Bank  of  Wheeling,  41  ^  "That  an  agent  is  bound  to  pursue  the 

Pa.  St.  R.  42,  it  was  held,  that  the  public  orders  of  his  principal,  and  is  answerable  for 

prosecution  for  the  theft,  does  not  supersede  any  injury  consequent  on  his  departure  from 

or  in  any  way  control,  the  private  action  for  them,  however  fair  may  have  been  his  mo- 

the  value  of  the  thing  stolen,   though  it  is  tives  for  such  departure,  is  a  plain  principle 

suspended,  until  the  public  prosecution  for  the  of  law  ;"  Manella,  P.ujalls  &  Co.  v.  Barry,  3 

offence,  has  been  duly  conducted  and  ended  ;  Cranch's  R.  415  ;   Keener  v.  Harrod  et  al.,  2 

and  as  the  person  wronged  by  the   theft,  is  Md.  R.  63  ;  Bruce  v.  Davenport,  36  Barb.  R. 


OF   TITLE. 


501 


venience  of  commerce,  been  conferred  on  factors  and  agents. (5) 
The  provisions  of  these  acts  are  too  long  to  be  here  inserted;  but 

(s)  stats.  4  Geo.  IV,  c.  8.3 ;  6  Geo.  IV,  c.  94 ;  5  &  6  Vict.  c.  39. 


349  ;  nor  will  the  principal  be  bound  for  his 
acts,  whether  the  agency  be  general  or  special, 
if  it  was  known  to  the  party  with  whom  he 
dealt,  that  the  agent  was  exceeding  his 
powers  ;  Sandford  v.  Handy,  23  Wend.  R. 
260  ;  State  of  Illinois  v.  Delafield,  8  Paige's 
C.  R.  627;  Fox  v.  Fisk,  6  How.  (Missi.)  Rep. 
328;  Longworth  v.  Conwell,  2  Blackf.  R. 
469  ;  Walsh  et  al.  v.  Peirce,  12  Vt.  R  138  ; 
Hemphill  v.  The  Bank,  6  Smed.  &  Mar.  R. 
44  ;  Goad  v.  Hurts's  Admrs.,  8  Id.  787  ;  Rob- 
ertson V.  Ketchum.  11  Barb.  S.  R.  662; 
Reeves  et  al.  v.  Baldwin,  1  Cart.  R.  216  ; 
McCoy  V.  McKowen,  Admr.,  26  Missi.  R. 
487  ;  Lewin  v.  Delie  et  al.,  17  Missi.  R.  64  ; 
North  River  Bank  v.  Ayraar,  3  Hill's  R.  266  ; 
Bank  of  the  United  States  v.  Dunn,  6  Pet.  R. 
61  ;  Bank  of  the  Metropolis  v.  Jones,  8  Id. 
12  ;  Angel  v.  The  Town  of  Pownal,  3  Vt.  R. 
461  ;  Huntington  et  al.  v.  Wilder,  6  Id.  334. 

A  special  agent  is  one  who  is  employed 
about  one  specific  act,  or  certain  specific  acts, 
alone  ;  Walker  v.  Skipwith,  1  Meigs's  R. 
607;  Bryant  v.  Moore,  26  Maine  R.  86;  a 
general  agency,  however,  is  not  the  reverse 
of  this,  and  does  not  mean  the  substituting 
one  in  the  place  of  another,  for  transacting 
all  manner  of  business,  since  there  are  few 
instances  in  common  use  of  an  agency  of  that 
description,  but  is  an  authority  not  unlim- 
ited, and  must  necessarily  "be  restrained  to 
the  transactions  and  concerns,  appurtenant  to 
the  business  of  the  principal ;"  Odiorne  et  al. 
V.  Maxcy  et  al.,  13  Mass.  R.  181 ;  Salem 
Bank  v.  Gloucester  Bank,  17  Id.  29  ;  Walker 
V.  Skipwith,  1  Meigs's  R.  507  ;  Anderson  v. 
Coonley,  21  Wend.  R.  279;  Rossiter  v.  Ros- 
siter,  8  Id.  494 ;  Stowe  et  al.  v.  Wyse,  7 
Conn.  R.  214  ;  Hodge  v.  Combs,  1  Black's 
(U.  S.)'R.  192  ;  Stevenson  et  al.  v.  Hoy,  43 
Pa.  St.  R.  191  ;  but  a  general  agent,  is  one 
whom  a  man  puts  in  his  place,  to  transact  all 
his  business  of  a  particular  kind;  Loudon, 
Ac,  Soc.  V.  Hagerstown,  &c.,  Bank,  36  Pa. 
St.  R.  498. 

A  distinction  is  to  be  noticed  between 
general    and   special    agencies,    as    regards 


third  persons  ;  for  although  in  the  former  an 
attorney  in  fact  will  be  responsible  to  his 
principal,  if  he  exceeds  any  private  in.struc- 
tions  which  may  be  given  limiting  his  gene- 
ral powers,  yet  the  persons  with  whom  he 
deals  will  not  be  bound  by  such  private  in- 
structions, for  they  cannot  be  supposed  to 
know  anything  about  them ;  Lobdel  v.  Ba- 
ker, 1  Metcf.  R.  193  ;  Mann  v.  The  Commiss. 
Co.,  15  Johns.  R.  54;  Reals  v.  Allen,  18 
Johns.  R.  363  ;  Allen  v  Ogden,  1  Wash  C. 
C.  R.  174  ;  Gordon  et  al.  v.  Buchanan  et  al., 
5  Yerg.  R.  71  ;  Rossiter  v.  Rossiter,  8  WeiJd. 
R.  494;  Tradesman's  Bank  v.  Astor  et  al., 
11  Id  90  ;  Jaques  v.  Todd,  3  Id.,  83  ;  Fish- 
er et  al.  V.  Campbell,  9  Port.  R.  213  ;  Long- 
worth  V.  Conwell,  2  Blackf.  R.  469  ;  Morri- 
son's Exr.  V.  Taylor,  6  B.  Mon.  R.  85; 
Johnson  v  Jones,  4  Barb.  S.  R.  369  ;  Walsh 
et  al.  V.  Peirce,  12  Vt.  R.  138  ;  Gibbs  et  al. 
V.  Linsley,  13  Id.  208  ;  Arnold  et  al.  v.  Hal- 
enbrake  et  al.,  5  Wend.  R.  34  ;  Bryant  v. 
Moore,  26  Maine  R.  86  ;  Lamothe  v.  St. 
Louis  Marine  Railway  and  Dock  Co.,  17 
Mo.  R.  204  ;  Lightbody  v.  The  N.  A.  Ins. 
Co.,  23  Wend.  R.  22  ;  Lance  v.  Barrett,  1 
Hill's  (S.  C.)  R.  204  ;  Lagow  v.  Patterson,  1 
Blackf.  R.  252  ;  Loudon,  &c.,  Soc.  v.  Hagers- 
town, &e.,  Bk.,  36  Pa.  St.  R.  498;  Williams 
V.  Getty,  31  Id.  461  ;  whereas  in  special 
agency,  the  authority  must  be  strictly  pur- 
sued, or  the  principal  will  not  be  bound  ; 
Schimmelpenich  et  al.  v.  Bayard  et  al.,  1 
Pet.  R.  264  ;  Andrews  v.  Kneeland,  6  Cow. 
R.  354;  Lightbody  v.  The  N.  American  Ins. 
Co.,  23  Wend.  R.  22;  Lobdell  «;.  Baker,  1 
Metcf.  R.  193  ;  Anderson  v.  Coonley,  21 
Wend.  R.  279  ;  Mann  v.  The  Commiss  Co., 
15  Johns.  R.  54  ;  Reals  v.  Allen,  18  Id.  363; 
Thompson  v.  Stewart,  3  Conn.  R.  183  ;  Al- 
len V.  Ogden,  1  Wash.  C.  C.  R.  174  ;  Bleene 
V.  Proudfit,  3  Call's  R.  207  ;  Gordon  et  al.  v. 
Buchanan  et  al.,  5  Yerg.  R.  71  ;  Rossiter  v. 
Rossiter,  8  Wend.  R  494  ;  Tradesmen's  Bk. 
V.  Astor  et  al.,  11  Wend.  R.  90  ;  Denning  v. 
Smith,  3  Johns.  C.  R.  344;  State  of  Illinois 
V.  Delafield,  8  Paige's  C.  R.  527  ;  Jaques  v. 


502  OF   TITLE. 

their  general  effect  is  to  render  valid  sales  and  pledges  made  by 
factors  or  agents,  notwithstanding  any  notice  of  the  fact  of  their 

Todd,  3  Wend.  R.  83;  Fisher  et  al.  v.  Camp-  Lightbody  v.  The  N.  A.  Ins.  Co.,  23  Wend, 
bell,  9  Port.  R.  213  ;  Dresser  Manufacturing  R.  22  ;  N.  River  Bank  v.  Aymar,  3  Hill's  R. 
Co.  V.  Waterston  et  al.,  3  Metcf.  R.  18;  266;  and  if  the  principal  has  by  his  declara- 
Cowan  V.  Adams  et  al.,  10  Maine  R.  374;  tions,  given  rise  to  the  opinion,  that  he  has 
Morri.«<on's  Exr.  v.  Taylor,  6  B.  Mon.  R.  85  ;  granted  greater  powers  than  have  in  fact 
Lance  t;.  Barrett,  1  HilFs  (S.  C.)  R.  204;  been  given,  he  will  not  be  allowed  to  avail 
Lagowt;.  Patterson,  1  Blackf.  R.  252;  Thorn-  himself  of  the  imposition,  to  ward  off  re- 
dike  V.  Godfrey,  3  Greenlf.  R.  431  ;  Dehart,  sponsibilities  which  have  arisen  from  his  rep- 
4c.,  V.  Wilson,  Ac,  6  Mon.  R.  581;  Admrs.  resentations  ;  Schimmelpenich  et  al.  v.  Bay- 
of  Mitchell  et  al.  v.  Sproul,  5  J.  J.  Marsh,  ard  et  al.,  1  Pet.  R.  264;  Perkins  v.  The 
R.  267  ;  Powell  v.  Buck,  4  Strobh.  R.  427  ;  Washington  Insurance  Co.,  4  Cow.  R.  645. 
Scott  V.  McGrath,  7  Barb.  S.  R.  53  ;  Reany  In  accordance  with  the  above  principles,  it 
V.  Culbertson,  21  Pa.  St.  R.  507;  Shepley  has  been  held,  that  a  factor  cannot  pledge 
V.  Little,  6  Wat.  R.  500  ;  Parsons  v.  Webb,    the  goods  of  his  principal  ;  Kinder   et  al.  v. 

8  Greenlf.  R.  38;  Stewart  v.  Donnelly,  4  Shaw  et  al.,  2  Mass.  R.  398  ;  Van  Amringe  v. 
Yerg.  R.  177;  Snow  v.  Perry,  9  Pick.  R.  Peahody  et  al.,  1  Mass.  R.  440;  Rodrighez 
539  ;  Arnold  et  al.  v.  Hallenbrake  et  al.,  5  v.  Hofferman  et  als.,  5  Johns.  C.  R.  417  ; 
Wend.  R.  34;  Pursley  v.  Morrison,  7  Ind.  Evans  v.  Potter,  2  Galls.  R.  13  ;  Kelly  et  al. 
R.  356  ;  and  one  dealing  with  a  special  agent  v.  Smith  et  al.,  1  Blatch.  R.  290  ;  and  the 
is  bound  to  inquire,  and  ascertain  the  extent  reason  is,  that  his  authority  is  only  to  sell ; 
of  his  authority  ;  Schimmelpenich  et  al.  v.  Laussatt  v.  Lippincott  et  al.,  6  Serg.  &  Raw. 
Bayard  et  al.,  1  Pet.  R.  264;  Snow  v.  Perry,    R-    391;    nor   can    he   deliver   the  goods  of 

9  Pick.  R.  539  ;  Fisher  et  al.  v.  Campbell,  9    his  principal,  to  a  creditor  in  payment  of  his 
Port.    R.    213;  Murdock  v.  Mills  et   al.,    11    own  debt,  even  though  he  have  a  lien  upon 
Metcf.  R.-  6  ;  Powell  v.  Buck,  4  Strobh.   R.    them  ;   Benny  et  al.   v.  Rhodes,  18   Mo.   R. 
427;   Powell  v.  Henry,  27  Ala.  R.  612;  par-    147;  Same  v.   Pegram,    Id.  191;   but  if  the 
tieularly  where  one  is  acting  in  a  public  ca-    factor  has  a  lien,  he  may  pledge  the  goods  for 
pacity,  or  as  the  representative  of  a  corpora-    his   own  debt,   to  the    amount  of  the   lien  ; 
tion,  for   then  the  limit  of  his  power  may  be    Warner  v.  Martin,  11  How.  R.   209  ;  where, 
readily  ascertained  by  a  reference  to  statutes    however,  an  agent  has  pledged  his  employ- 
er records  ;  Salem  Bank  v.  Gloucester  Bank,    er's  goods,  he  does  not  thereby  lose  his  right 
17  Mass.  R.  29  ;   Bryant  v.  Moore,  26  Maine    to  sell   them  ;    and   if  he   does   so,    and    the 
R.   86  ;  Denning  v.   Smith,  3  Johns.  C.    R.    pledgee  afterwards  disposes  of  them,  he  will 
344  ;  Baltimore  v.  Eschbach.  18  Md.  R.  276  ;    be  liable  to  the  purchaser  ;   Nowell  et  al.  v. 
Murray  v.  Carothers,    1  Met.  (Ky.)   R.   171.    Pratt  et  al.,  5  Cush.  R.  Ill  ;   but  by  statute, 
But  even  in  the  case  of  a  limited  agency,  the    generally,  a  factor  may  pledge  his  principal's 
deputy  may  have  a  general  authority  to  ac-    goods,  and  if  the   pledgee  takes  with  notice 
eomplish  the  purpose  for  which  he  was  crea-    that  the  pledgor  is  a  factor,  he  will  acquire 
ted,  "or  be  limited  to  do  it  in  a  particular    only  the  lien  which  the  factor  had  ;  if,  how- 
manner.     If   the  limitation,  respecting    the    ever,  he  takes  without  notice,  he  will  have 
manner  ofdoing  it,  be  public,  or  known  to  the    the  same   interest  as  he  would   if  the  factor 
person  with  whom  he  deals,  the  principal  will    had  been  owner.     An  agent  authorized  to  as- 
not  be  bound,  if  the  instructions  are  exceeded    sist  in  a  settlement,  has  no  power  to  pledge  ; 
and  violated.     If  such  limitation  be  private,    Swelt  et  al.  v.  Brown,  5  Pick.  R.  178  ;  Wood 
the  agent  may  accomplish  the  object  in  viola-    v.  McLain,  7  Ala.  R.  800  ;  Jones  v.  Farley,  6 
tion    of  his    instructions,  and   yet   bind   his    Greenlf.    R.    226  ;    Hewes    v.    Doddridge,    1 
principal  by  his  acts  ;"  Bryant  v.  Moore.  26    Rob.  (Va.)  R.  143  ;  nor  is  a  power  to  settle,  a 
Maine  R.  86  ;  Hotch  v.  Taylor,   ID  N.  H.  R.    power  to  arbitrate  :  Hubert;.  Zimmerman,  21 
538  •  Walker  v.  Skipwith,  1  Meigs's  R.  507 ;    Ala.  R.  488.     A  power  to  draw  notes,  is  not 


OF   TITLE. 


503 


being  merely  factors  or  agents,  provided  the  party  dealing  with 
them  have  no  notice  that  they  are  acting  without  authority  or 


fulfilled  by  giving  a  bond  ;  Banorgee  v.  Ho- 
vey  et  al.,  5  Mass.  R.  11  ;  and  when  author- 
ized to  be  drawn  or  indorsed  for  one  purpose, 
the' authority  does  not  extend  to  negotiating 
thera  for  any  other  object  ;  Hortons  et  al.  v. 
Townes,  6  Leigh's  R.  47  ;  Planters'  Bank  v. 
Cameron  et  al.,  3  Smed.  &  Mar.  R.  609  ; 
Suckley  v.  Turner  et  al.,  1  Brev.  R.  257,  S. 
•  C,  2  Bay's  R.  505  ;  Palmer  v.  Garrington,  1 
0.  N.  S.  253  ;  so,  if  directed  to  be  drawn  pay- 
able on  a  certain  day,  they  cannot  be  made 
payable  at  an  earlier  time  ;  Batty  v.  Cars- 
well  et  al..  2  Johns.  R.  48;  Tate  et  al.  v. 
Evans  et  al.,  7  Mo.  R.  419  ;  in  the  case  of  The 
Bank  of  the  United  States  v.  Bevine  et  al. ,  1 
Gratt.  R.  539,  where  nine  persons  jointly  au- 
thorized J.  B.  S.  to  indorse  for  them,  jointly, 
all  notes  drawn  payable  to  J.  B.  S. ,  it  was 
held  that  this  power  did  not  extend  to  the 
indorsing  of  a  note  drawn  payable  to  one  of 
the  principals.  On  the  other  hand,  an  agent 
cannot  bind  his  principal,  by  giving  a  note, 
when  he  is  merely  authorized  to  pay  a  sum  of 
money  ;  Webber  v.  The  President,  Ac,  of 
Williams  College,  23  Pick.  R.  302;  Savage 
V.  Rix  et  al.,  9  N.  H.  R.  263;  or  to  make 
purchases ;  Taber  v.  Cannon  et  al.,  8  Metcf 
R.  456  ;  Emerson  et  al.  v.  The  Providence 
Hat  Manufacturing  Co.,  12  Mass.  R.  237; 
Dennison  v.  Tyson,  17  Vt.  R.  550  ;  or  to  man- 
age a  grocery;  Smith  et  al.  v.  Gibson,  6 
Blackf  R.  369  ;  or  to  take  care  of  a  planta- 
tion, Scarborough  v.  Reynolds,  12  Ala.  R. 
252  ;  nor  will  a  power  to  receive  and  pay 
debts,  or  take  notes,  or  construct  carriages, 
authorize  the  issuing  of  a  promissory  note 
Martin  v.  Walton  &  Co.,  1  McCord's  R.  16 
McCulIoch  V.  McKee,  16  Pa.  St.  R.  289 
Paige  V.  Stone  et  al.,  10  Metcf.  R.  160  ;  Hays 
et  al.  V.  Lynn,  7  Wat.  R.  524  ;  Temple  v. 
Pomroy,  4  Gray's  R.  128.  A  power  to  pur- 
chase, with  money  furnished  for  that  pur- 
pose, is  no  power  to  buy  on  credit ;  Boston 
Iron  Co.  V.  Hale,  8  N.  H.  R.  363  ;  Patton  v. 
Brittain,  10  Ired.  R.  8  ;  nor  is  the  credit  sys- 
tem allowable,  to  one  who  is  empowered  to 
CDnduct  a  business  on  cash  principles;  Stod- 
dard &  Co.  V.  Mcllvain  et  al.,  7  Rich.  R. 
£25  ;  and  special  authority  to  sell,  does  not 


authorize  a  sale  on  credit  ;  Payne  v.  Potter, 
9  Iowa  R.  549.  There  are  many  similar  ca- 
ses, deciding  that  an  agent's  power  is  to  be 
restricted  to  the  authority  creating  him ; 
Heffernan  v.  Adams,  7  Wat.  R.  116;  Hop- 
kins V.  Blanc,  1  Call's  R.  361  ;  Calef  v.  Fos- 
ter, 32  Maine  R.  92 ;  Shriver  v.  Stevens, 
2  Jones's  R.  258  ;  Hampton  et  al.  v  Mat- 
thews etal.,  14  Pa.  St.R.  105  ;  Nash  v.  Drew, 
5  Cush.  R.  422  ;  Soule  v.  Dougherty,  24  Vt. 
R.  92  ;  Yrquhart  v.  Mclver,  4  Johns.  R.  113  ; 
Ives  V.  Davenport,  3  Hill's  R.  273  ;  Wood- 
bury V.  Lamed,  5  Min.  R.  339  ;  Cochran  v. 
Richardson,  33  Vt.  R.  169  ;  Hagerstown  Bank 
V.  Loudon  Sav.  Fund  Soc,  3  Grant's  Cas. 
135  ;  Tate-y.  Citizens,  Ac,  Ins.  Co.,  13  Gray's 
R.  79  ;  Hazletine  v.  Miller,  44  Maine  R.  177  ; 
Seiple  V.  Irwin,  30  Pa.  St.  R.  513  ;  Brander 
V.  Columbia  Ins.  Co.,  2  Grant's  Cas.  412  ; 
and  see.  Cox  et  al.  v.  Robinson,  2  Stew.  & 
Port.  R.  91.  Where  a  personal  trust  or  con- 
fidence is  reposed  in  an  agent,  and  especially 
where  the  exercise  or  application  of  the  power, 
is  made  subject  to  his  judgment  or  discretion, 
the  authority  is  purely  personal,  and  cannot 
be  delegated  to  another,  unless  he  has  a  spe- 
cial power  of  substitution  ;  Lyonr.  Jerome,  26 
Wend.  R.  485;  Warneretal. v.  Martin,  11  How. 
R.  209  ;  Blantin  et  al.  v.  Whitaker  et  al.  11 
Hump.  R.  313;  Pruittj;.  Miller,  3  Port.  R.  16. 
In  the  cases  of  Gibson  v.  Colt  et  al.,  7 
Johns.  R.  390,  Nixon  v.  Hyserott  et  al.,  5 
Id.  159,  and  Liscomb  v.  Kiterell,  11  Hump. 
R.  256,  it  was  held  that  a  power  to  sell,  did 
not  authorize  a  covenant  of  warranty  ;  but  the 
two  former  eases  have  been  overruled,  and 
the  prevailing  opinion  is,  that  an  agent  who 
is  empowered  to  sell,  is  presumed  to  possess 
the  power  of  warranting,  unless  the  contrary 
appear  ;  Nelson  v.  Cowing  et  al.,  6  Hill's  R. 
336  ;  Woodford  v.  McClanahan,  4  Gilm.  R. 
85;  Peters  v.  Farnsworth,  15  Vt.  R.  155; 
Taggart  v.  Stanberry,  2  McLean's  R.  543  ; 
Skinner  v.  Gunn  et  al.,  9  Port.  R.  305  ; 
Gaines  v.  McKinley,  1  Ala.  R.  446  ;  Milburn 
V.  Belloni,  34  Barb.  R.  607  ;  Egell  v.  Frank- 
lin, 2  Sneed's  R.  236  ;  Cocke  v.  Campbell,  13 
Id.  286  ;  in  other  words,  a  power  to  sell,  im- 
plies a   power  to  warrant ;  for  every  power, 


504 


OF   TITLE. 


mala  fide.     The  authority  of  an  agent  acting  under  a  power  of 
attorney  determines  by  the   decease  of  the  person  giving  the 


whether  general  or  special,  includes  all  means 
necessary  for  carrying  it  into  effect  or  opera- 
tion, in  accordance  with  the  legal  maxim 
cui  cunque  aliquid  coiiceditur  etiam  et  id 
31716  quo  res  ipsa  non  esse  potest;  Peck 
et  al.  V.  Harriott  et  al.,  6  Serg.  &  Raw.  R. 
146  ;  Andrews  v.  Kneeland,  6  Cow.  R.  354; 
The  Chesapeake  Ins.  Co.  v.  Stark,  6  Cranch's 
R.  268  ;  Perrotin  v.  Cuculla,  6  La.  R.  587  ; 
N.  River  Bank  v.  Aymar,  3  Hiirs  R.  266  ; 
The  Merchants'  Bank  of  Ga.  v.  The  Central 
Bank  of  Ga.,  1  Kelly's  R.  418  ;  Rouse  et  al.. 
Overseers,  &c.,  v.  Moore  etal..  Overseers,  &c., 
18  Johns.  R.  407  ;  Andover  v.  Grafton,  7  N. 
H.  R.  298  ;  Sandford  v.  Handy,  23  Wend.  R. 
260  ;  Valentine  v.  Piper,  22  Pick.  R.  92  ; 
Vanada's  Heirs  v.  Hopkins,  Admr.,  Ac,  1 
J.  J.  Marsh.  R.  285  ;  Wilson  v.  Troup,  2 
Cow.  R.  197  i  Goodale  v.  Wheeler,  11  N.  H. 
R.  424  ;  Bahcock  v.  The  Western  Railroad 
Corporation,  9  Metcf.  R.  556  ;  McAlpin  v. 
Cassidy,  17  Tex.  R.  449  ;  hence,  where  an 
agent  is  directed  to  purchase,  and  no  money 
is  furnished,  he  may  buy  on  credit ;  Sprague 
et  al.  V.  Gillett  et  al.,  9  Metcf.  R.  91  ;  Chom- 
qua  V.  Mason  et  al.,  6  Gallis.  R.  342  ;  and  it 
is  presumed  that  goods  are  to  be  sold,  when 
placed  in  the  possession  of  one  whose  business 
it  is  to  sell ;  Gibbs  et  al.  v.  Linsley,  13  Vt. 
R.  208  ;  so  in  all  cases  where  no  express  di- 
rection is  given  in  regard  to  the  manner  of 
performing  the  duty,  it  is  implied  that  it  is 
to  be  done  in  the  ordinary  way,  and  that  any 
custom  or  known  usage  shall  be  followed  ; 
Van  Allen  v.  Vanderpoel,  6  Johns.  R.  69  ; 
James  et  al.  v.  McCredie  et  al.,  1  Bay's  R. 
294  ;  State  of  Illinois  v.  Delafield,  8  Paige's 
C.  R.  527  ;  McClure  v.  Richardson,  Rice's  R. 
218  ;  Ives  v.  Davenport,  3  Hill's  (N.  Y.)  R. 
373  ;  May  v.  Mitchell,  5  Hump.  R.  365  ;  Le- 
land  V.  Douglass,  1  Wend.  R.  490  ;  Frost  v. 
Wood,  2  Conn.  R.  23  ;  Bates  v.  The  Keith 
Iron  Co.,  7  Metcf.  R.  225  ;  Owings  v.  Hall,  9 
Pet.  R.  608  ;  Fraser  &  Co.  v.  Tenants  &  Co., 
5  Richard.  R.  375  ;  Northern,  Ac,  R.  R.  Co. 
V.  Bastian,  15  Md.  R.  494.  But  the  implied 
powers  of  agents,  will  not  extend,  beyond  the 


regular  and  general  course  of  their  business 
employment;  Jones  v.  Warner,  11  Conn.  R. 
11  ;  Pourie  et  al.  v.  Frasier,  2  Bay's  R  269; 
Topham  v.  Roche,  2  Hill's  (S.  C.)  R.  307  ; 
Kerns  v.  Piper,  4  Wat.  R.  222  ;  Washington 
Bank  v.  Lewis,  22  Pick.  R.  24';  Cox  v.  Hoff- 
man, 4  Dev.  &  Bat.  R.  180. 

The  principal  may  ratify  the  acts  of  an  f 
agent  who  has  exceeded  his  powers ;  and  if, 
being  informed  of  the  disobedience  of  his  or- 
ders, the  principal  makes  no  objection,  or  is 
silent  respecting  it,  it  is  considered  a  recogni- 
tion of  his  agent's  acts;  Courcier  v.  Ritter, 
4  Wash.  C.  C.  R.  549  ;  Snow  v.  Perry,  9  Pick. 
R.  539  ;  Cox  et  al.  v.  Robinson,  2  Stew.  & 
Port.  R.  91 ;  The  Merchants'  Bk.  of  Geo.  v. 
The  Central  Bk.  of  Geo.,  1  Kelly's  R.  418; 
Wood  V.  McCain,  7  Ala.  R.  800;  Despatch 
Line  of  Packets  v.  Bellamy  Manufacturing 
Co.,  Ac,  12  N.  H.  R.  205  ;  Weed  et  al.  v. 
Carpenter,  4  Wend.  R.  219;  Bosley  v.  Far- 
quhar  et  al.,  2  Blackf.  R.  61 ;  Hotch  v.  Tay- 
lor, 10  N.  H.  R.  538  ;  Patton  v.  Britain,  10 
Ired.  R.  8  ;  Burrit's  Survivors  v.  Ranch  et 
al.,  4  McLean's  R.  325;  Very  v.  Levy,  13 
How.  R.  345 ;  Cowan  v.  Wheeler,  31  Maine 
R.  439  ;  Bigelow  et  al.  v.  Denison,  33  Vt.  R. 
565  ;  Blantier  et  al.  v.  Whitaker  et  al.,  11 
Hump.  R.  313;  Little  f.  Stillheimer,  13  Mo. 
R.  572;  Law  v.  Cross,  1  Black's  (U.  S.)  R. 
533  ;  Klopp  V.  Witmoyer,  43  Pa.  St.  R.  226  ; 
Seymour  v.  Wyckoff,  ION.  Y.  R.  213;  Wright 
V.  Boynton,  37  N.  H.  R.  9 ;  Workman  v. 
Guthrie,  29  Pa.  St.  R.  495  ;  Phila.  AV.  &  B. 
R.  R.  Co.  V.  Cowell,  28  Id.  329 ;  such  a  rati- 
fication relates  back  to  the  time  of  the  grant- 
ing of  the  original  power,  and  is  equivalent 
to  an  authority  given  in  the  first  instance  ; 
Perry  v.  Hudson,  10  Geo.  R.  362  ;  Irons  v. 
Reyburn,  6  Eng.  R.  378 ;  but  this  adoption 
cannot  be  apportioned,  extending  only  to  a 
part  of  the  acts  of  the  agent,  and  rejecting 
others,  but  must  embrace  the  whole  or  noth- 
ing ;  Hoductt  V.  Tatum,  9  Ga.  R.  70  ;  Craw- 
ford et  al.  V.  Barkley,  18  Ala.  R.  270. 

In   order   to   authorize  the  inference  of  a 
general  agency,  it  is  not  necessary  that  the 


OF    TITLE.  505 

power.(^)  But  by  a  recent  act,  no  trustee,  executor,  or  administra- 
tor making  any  payment  or  doing  any  act,  bonajide  in  pursuance 
of  anv  power  of  attorney  in  ignorance  of  the  death  of  the  per- 
son who  gave  the  power,  or  of  his  having  done  some  act  to 
avoid  the  power,  shall  be  liable  for  the  money  so  paid  or  the  act 
so  done.{ii) 

In  ancient  times  the  sale  of  lands  was  usually  *accom-  r=,:q/^q-| 
panied  by  a  warranty  of  their  title;  and  some  words,  such  ^  -* 
as  the  word  give  in  a  feoffment,  had  the  effect  of  an  implied  war- 
ranty, when  none  was  expressed. (a:)'  "When  warranties  fell  into 
disuse,  the  purchasers  of  land  acquired  a  right  to  covenants  for 

(t)  Bacon's  Abridgment,  tit.  Authority  (E)  ;  Lepard  v.  Vernon,  2  Ves.  &  Bea.  51. 
Otherwise,  where  expressed,  to  be  valid  notwithstanding  death.  Kiddill  v.  Farnell,  3  Sma. 
&  Giff.  428. 

(«)   Stat.  22  &  23  Vict.  c.  35,  s.  26. 

(.r)  See  Principles  of  the  Law  of  Real  Property,  344,  1st  ed. ;  346,  2d  ed. ;  359,  3d  ed. ; 
365,  4th  ed. ;  376,  5th  ed. ;  399,  6th  ed. 

person  should  have  done  an  act,  the  same  in  tween  a  ge?ieral  and  universal  agent  is  recog- 

species  with  that  in  question  ;  for  if  he  have  nized,  and  it  was  said  that  such   a  universal 

usually  done  things  of  the  same  general  char-  authority   as    the    latter    may  exercise,    will 

acter  and  effect,  with  the  assent  of  his  prin-  never  be  inferred  from  any  general  expression, 

cipal,  it  is  enough  ;  Commercial  Bank  v.  Nor-  however    broad,   but    the    law  will    restrain 

ton  et  al.,  1  Hill's    (N.  Y.)   R.  501  ;  Arnold  them  to  the  particular  business  of  the  party, 

et  al.  V.  Halenbrake  et  al.,  5  Wend.  R.  34  ;  in  respect  to  which  it  is  presumed,  his  inten- 

Kelley    v.  Lindsey,   7    Gray's    R.    287  :  and  tion  to   delegate   the   authority  was    princi- 

where  an  agency  is    proved,  and  its  extent  pally  directed.  .   .   .  The  difference  between  a 

is  not  shown,  the  presumption  is,  that  it  is  a  general  and  especial  agent,  is  said  to  be  this  : 

general  agency  ;  Methuen  Co.  v.   Hayes,   33  the  former   is  appointed  to  act  in  the  affairs 

Maine  R.  169.  of  his  principal,  generally,  and  the  latter  to 

The  opinion  of  Chief  Justice  Collin,  in  the  act  concerning  some   particular  object.      In 

case  of  Dearing  v.  Lightfoot,   16  Ala.  R.  31,  the  former   ease,  the  principal  will  be  bound 

contains  an    epitome   of   the  subject  of  this  by  the  acts  of  his  agent,  within  the  scope  of 

note  ;  he  says,  "  Powers  of  attorney  are  ordi-  the  general  authority  conferred  on  him,  al- 

narily  subject  to  a  strict  construction,  and  though  those  acts  are  violative  of  his  private 

the  authority  is  never  extended  beyond  that  instructions    and    directions.     In   the   latter 

which  is  given  in   terms,   or  is  necessary  and  case,  if  the  agent  exceeds  the  special   power 

proper  for  carrying  the  authority   so  given  conferred  on  him,  the  principal  is  not  bound 

into  full  effect.   .  .    .   But  in  all  cases,  whether  by  his  acts.   .   .  .   Although  the  acts  of  the 

the  agency  be  general  or  special,  it  is  said  to  agent  may  be  inoperative  against  the  princi- 

be  a  universal  principle,  that  unless  the  in-  pa'.  yet  it  is  competent  for  the  latter  to  ratify 

ference  is  expressly  excluded,   by  other   cir-  them." 

cumstances,  it  includes  all  the  usual  modes  '  See   "  Rawle  on  Covenants  for  Title,"  p. 

and  means  of  accomplishing  the  objects  and  467,  et  seq. 
aims  of  the  agency.  .  .  .  The  distinction  be- 


506  OF   TITLE. 

the  title,  varying  in  their  stringency  according  to  the  nature  of 
the  title  of  the  vendor.(?/)  No  warranty,  however,  arises  from  the 
mere  sale  of  goods,  unless  it  be  expressly  given,  or  implied  from 
the  custom  of  the  trade  or  the  nature  of  the  contract.(^)  Every 
affirmation  made  by  the  vendor  at  the  time  of  sale  respecting  the 
goods  is  an  express  warranty,  if  it  appear  to  have  been  so  intend- 
ed.(rt)  And  if  the  vendor  state  that  the  goods  are  his  own,  this 
amounts  to  a  warranty  of  his  title  ;(6)  but  if  the  contract  for  sale  be 
in  writing,  the  warranty  must  be  in  writing  also.(c)  And  a  w^ar- 
ranty  made  subsequently  to  the  sale  is  void  for  want  of  considera- 
tion.((/)  Contracts  made  in  the  course  of  any  trade  are  always  sub- 
ject to  the  custom  of  that  trade;  and  if  by  the  custom  of  the  trade  a 
warranty  is  implied  in  any  contract,  the  vendor  will  be  bound  by 
it,  in  the  same  manner  as  if  he  had  given  an  express  warranty.(e) 
So  the  nature  of  the  contract  may  be  such  as  to  imply  a  warranty. 
Thus  a  contract  to  furnish  goods  for  a  particular  purpose,  con- 
tains an  implied  warranty  that  they  are  fit  for  that  purpose  ;(/) 
and  a  *contract  to  furnish  manufactured  goods  implies  a 
L     ^^  w^arranty  that  they  shall  be  of  a  merchantable  quality. {gf 

{y)  Ibid.,  348,  1st  ed.  ;  349,  2d  ed.  ;   362,  3d  ed.  ;  368,  4th  ed.  ;  379,  5th  ed.  ;  402,  6th  ed. 

(2)  Chanter  v.  Hopkins,  4  Mee.  &  W.  399  ;  Burnby  v.  Bollett,  16  Mee.  &  W.  644  ;  Mor- 
ley  V.  Attenborough,  3  Exch.  Rep.  500. 

{a)  See  Richardson  v.  Brown,  1  Bing.  344,  E.  C.  L.  R.  vol.  8  ;  Sheppard  v.  Kain,  5  Barn. 
&  Aid.  240,  E.  C.  L.  R.  vol.  7 ;  Power  v.  Barham,  4  Ad.  &  Ell.  473,  E.  C.  L.  R.  vol.  31; 
Carter  v.  Crick.  4  H.  &  N.  412. 

(h)  Furniss  V.  Leicester,  Cro.  Jac.  474;  Medina  v.  Stoughton,  1  Salk.  210. 

(f)    Pickering  v.  Dowson,  4  Taunt.  779. 

(rl)    Finch,  L.  189.     See  am^^  p.  69. 

(f)    Jones  V.  Bowden,  4  Taunt.  847. 

(/)  Jones  V.  Bright,  5  Bing.  533,  E.  C.  L.  R.  vol.  15  ;  Brown  v.  Edgington,  2  Man.  &  Gfr. 
279,  E.  C.  L.  R.  vol.  40. 

{g)  Laing  v.  Fidgeon,  6  Taunt.  108,  E.  C.  L.  R.  vol.  1. 


1  No  particular  form  of  words  is  required  3  Vt.  R.  63  ;  Banfield  v.  Brutton,  7  B.  Mon. 
to  constitute  a  warranty  of  personal  property,  R.  108;  Corley  v.  Wilkins,  6  Barb.  S.  R. 
nor  is  the  word  "warrant"  necessary  ;  Bacon  557  ;  Hawkins  v.  Berry,  5  Gilm.  R.  3fi  ;  Rog- 
V.  Brown,  3  Bibb's  R.  35  ;  Chapman  v.  Murch,  ers  v.  Ackerman,  22  Barb.  R.  134  ;  and,  even 
19  Johns.  R  290  ;  Roberts  y.  Morgan,  2  Cow.  where  the  word  "warrant"  has  been  used, 
R.  438  ;  The  Oneida  Manufacturing  Soc.  v.  there  is  still  room  to  doubt  whether  a  tech- 
Lawrence  et  a!.,  4  Cow.  R.  440  ;  Osgood  etal.  nical  warranty  was  intended  ;  Starnes  et  al. 
V.  Lewi.s  2  Hnr.  &  GiiPs  R.  429  :  Whitney  t;.  v.  Erwin,  10  Ired.  R.  226  ;  Isley  v.  Stewart, 
Sutton,  11  Wend.  R.  411  ;  Ricks,  Admr.,  v.  4  Dev.  &  Bat.  R.  160.  But  a  mere  represen- 
Dillahunty,  8  Port.  R.  134;  Towell  et  al.  v.  tation,  affirmation,  or  description,  does  not 
Gatewood,  2  Scam.  R.  22 ;  Beeman  v.  Black,  ^amount  to  a  warranty,  even  though  the  prop- 


OF   TITLE.  507 

And  an  important  addition  to  the  law  of  warranty  lias  been  made 


erty  should  turn  out  to  be  entirely  different 
from  the  article  described,  or  spurious  ;  Bar- 
rett V  Halls,  1  Aik.  R.  269  ;  Dyer  v.  Lewis, 
7  Mass.  R.  284  ;  Jackson  v.  Wetherill,  7  Serg. 

6  Raw.  R.  480  ;  Hyatt  v.  Boyle,  5  Gill  & 
Johns.  R.  110  ;  Hogins  v  Plympton,  11  Pick. 
R.  97  ;  Steward  v.  Dougherty,  .3  Dana's  R. 
479  ;  Welsh  v.  Carter,  1  Wend.  R.  185  ;  Whit- 
man V.  Freese  et  al.,  2.3  Maine  R.  212;  Wa- 
gon V.  Rowe,  16  Vt.  R.  526  ;  McFailand  v. 
Newman,  9  Wat.  R.  55  ;  Banfield  v.  Brutton, 

7  B.  Mon.  R.  108  ;  Lamb  v.  Crafts,  12  Mete. 
R.  355  ;  The  Richmond  Trading  and  Manu- 
facturing Co.  V.  Farquhar,  8  Blackf.  R.  89  ; 
Humphreys  v.  Comline,  Id.  508  ;  Hawes  et  al. 
V.  Lawrence  et  al.,  4  Comst.  R.  345  ;  Mackay 
V.  Rhinelander  et  al. ,  1  Johns.  Cas.  408; 
Wetherill  v.  Neilson,  20  Pa  St.  R.  448; 
Weimer  v.  Clement,  37  Id.  149  ;  Rockafellow 
V.  Baker,  41  Id.  319;  Hotchki.ss  v.  Gage,  26 
Barb.  R.  141  ;  and  the  purchaser  cannot 
claim  indemnity,  if  the  goods  differ  in  quality 
or  kind  from  those  represented,  unless  there 
has  been  an  express  warranty,  or  fraud,  or 
such  circumstances  as  will  amount,  in  law, 
to  an  implied  warranty  ;  Snell  et  al  v.  Moses 
et  al.,  1  Johns.  R.  86;  Perry  v.  Aaron,  Id. 
129  ;  Seixas  et  al.  v.  Woods,  2  Caines"s  R.  48  ; 
Holden  v.  Dakin,  4  Johns.  R.  421  ;  Davis  v. 
Meeker,  5  Id.  354  ;  Sands  et  al.  v.  Taylor  et 
al.,  Id.  404  ;  Cunningham  v.  Spier,  13  Id. 
392;  Kimmel  v.  Lichty,  3  Yeat.  R.  262;  Al- 
len «.  Cockerill,  4  Bibb's  R.  264;  Wilson  v. 
Shackleford,  4  Rand.  R.  5 ;  Neilson  et  al.  v. 
Dickerson,  1  Desauss.  R.  133  ;  Kingsbury  v. 
Taylor,  29  Maine  R.  508  ;  Carley  v.  Wilkins, 
6  Barb.  S.  R.  557  ;  Weimer  v.  Clement,  37 
Pa.  St.  R.  147  ;  Eagan  v.  Call,  34  Id.  236  ; 
nor  can  he  complain,  for  "if  he  is  unwilling 
to  trust  his  own  judgment,  he  may  insist 
upon  a  warranty  of  the  quality,"  and  this 
will  be  binding,  even  where  the  goods  have 
been  examined  by  the  buyer;  Willings  et  al. 
V.  Consequa,  Pet.  C.  C.  R.  317,  S.  C.  Id.  172  ; 
where,  however,  a  representation  or  de.«crip- 
tion,  is  understood  by  the  parties  as  an  abso- 
lute assertion,  as  contradi.'^tinguished  from  a 
mere  expression  of  opinion,  it  is  a  warranty  ; 
The  Oneida  Manufacturing  Co.  v.  Lawrence 
et  al.,  4  Cow.  R.  440  ;  Osgood  etal.  v.  Lewis, 
2   Har.  &  Gill's  R.  495  ;   Kinley  v.  Fitzpat- 


rick,  4  How.  (Missi.)  R.  59;  Morrill  v.  Wal- 
lace et  al.,  9  N.  H.  R.  Ill  ;  Baum  v.  Stevens, 
2  Ired.  R.  411  ;  Erwin  v.  Maxwell,  3  Murph. 
R.  241 ;  Ayres  v.  Parks,  Admr.,  3  Hawkes's 
R.  89  ;  Gilchrist  v.  Marrow,  2  Carol.  L.  Re- 
pos.  608;  Foggart  v.  Blackweller  et  al.,  4 
Ired.  R.  238  ;  House  v.  Firt,  4  Blackf.  R. 
293  ;  Winsor  et  al.  v.  Lombard,  18  Pick.  R. 
57  ;  McFarland  v.  Newman,  9  Wat.  R.  55  ; 
Foster  V.  Caldwell,  18  Vt.  R.  176  ;  Beeman  v. 
Buck,  3  Id.  53  ;  Carley  v.  Wilkins,  6  Barb. 
S.  R.  557 ;  Tyre  v.  Causay,  4  Harring.  R, 
425  ;  Hawkins  v  Berry,  5  Gilm.  R  36  ;  Hil- 
man  v.  Wilcox,  30  Maine  R.  170  ;  Ender  v. 
Scott,  6  111.  R.  35  ;  Taymon  v.  Mitchell  et  al., 
1  Md.  C.  Decs.  496  ;  Reals  v.  Olmstead,  24  Vt. 
R.  114;  Lamme  v.  Gregg,  1  Met.  (Ky.)  R. 
444  ;  Warren  v.  Van  Pelt,  4  E.  D.  Smith's  R. 
202  ;  Randall  v.  Thornton,  43  Maine  R.  226. 
In  the  case  of  Towell  et  al.  v.  Gatewood,  2 
Scam.  R.  22,  this  distinction  was  lucidly 
drawn  by  Chief  Justice  Wilson,  who  says  : 
"  Where  the  representation  is  positive,  and 
relates  to  a  matter  of  fact,  it  constitutes  a 
warranty,  as,  that  a  ship  is  an  American  or 
French  ship,  or  that  a  crew  consists  of  so 
many  hands.  But  where  the  representation 
relates  to  that  which  is  a  matter  of  opinion, 
or  fancy,  as,  for  example,  the  value  of  a 
horse  or  painting,  in  such  case,  the  represen- 
tation is  to  be  regarded  as  an  expression  of 
opinion,  rather  than  such  a  verification  of  a 
fact,  as  will  amount  to  a  warranty,  unless 
that  idea  is  excluded  by  an  express  warranty, 
or  such  other  declaration,  as  leaves  no  doubt 
of  the  intention  to  make  a  warranty."'  So, 
also,  if  the  aflBrmation  be  accompanied  with 
a  declaration,  that  the  owner  would  not  be 
afraid  to  warrant,  it  amounts  to  such  ;  Cook 
V.  Mosely,  13  Wend.  R.  277.  Whenever  it 
is  doubtful  whether  a  warranty  was  intended 
by  the  parties  to  a  contract,  the  question  is 
one  lying  within  the  province  of  a  jury  to  de- 
termine ;  Duffee  v.  Mason,  8  Cow.  R.  25  ;  Os- 
good et  al.  V.  Lewis,  2  Har.  &  Gill's  R.  495  ; 
Whitney  v.  Sutton,  11  Wend.  R.  411  ;  Kinley 
V.  Filzpatrick,  4  How.  (Missi  )  R.  59  ;  Baum 
V.  Stevens,  2  Ired.  R.  411  ;  Foggart  v.  Black- 
weller, 4  Id.  2.38  ;  House  v.  Firt,  4  Blackf.  R. 
293;  McFarland  v.  Newman,  9  Wat.  R.  55; 
Fo.ster  v.  Caldwell,  18  Vt.  R.  176  ;  Bradford, 


508 


OF  TITLE. 


by  the  Merchandise  Marks  Act,  1862,  to  the  provisions  of  which 
we  liave  before  referred. (A) 

(h)  Stat.  25  &  26  Vict.  c.  88,  ante,  p.  2-35. 


Ac,  V.  Bush,  10  Ala.  R.  386  ;  but  where  the 
contract  is  in  writing,  it  must  be  interpreted 
by  the  court  ;  Osgood  et  al.  v.  Lewis,  2  Har.  & 
Gill's  R.  495. 

Where  a  person  has  purchased  an  article 
with  the  ability  or  opportunity  of  inspection, 
he  will  be  considered  as  having  purchased  on 
his  own  judgment,  and  will  not  be  entitled  to 
look  to  the  seller,  should  he  be  disappointed 
in  the  value  or  quality  of  the  article  ;  Rose 
et  al.  V.  Beatie,  2  N.  &  McC.  R.  638;  Mc- 
Farland  v.  Newman,  9  Wat.  R.  55  ;  Salis- 
bury et  al.  V.  Stainer  et  al.,  19  Wend.  R. 
159  ;  Barnett  v.  Stanton,  2  Ala.  R.  195  ; 
Baird  v.  Matthews,  6  Dana's  R.  129  ;  Dillard 
V.  Moore,  2  Eng.  R.  166  ;  Simpson  v.  Wiggin 
et  al.,  3  Wood.  &  Min.  R.  413;  Taymon  v. 
Mitchell  et  al.,  1  Md.  C.  Decs.  496  ;  Cal- 
houn V.  Veehis,  3  Wash.  C.  C.  R.  165;  Cur- 
cier  et  al.  v.  Pennock,  14  Serg.  &  Raw.  R. 
51  ;  Carson  v.  Baillie,  19  Pa.  St.  R  375  ; 
and  this  is  upon  the  principle,  '-that  the 
vendee  has  it  in  his  power  to  guard  against 
any  latent  defect,  or  deception  in  the  arti- 
cle purchased,  by  exacting  a  warranty  from 
the  vendor ;  but  if,  instead  of  taking  this 
precaution,  he  will  trust  to  his  own  sagacity 
and  judgement,  he  should  bear  the  loss  if  they 
deceive  him;'"  Welsh  v.  Carter,  1  Wend.  R. 
185  ;  but  if  the  seller  has  acted  fraudulently, 
he  will,  notwithstanding,  be  liable  ;  Henshaw 
et  al.  V.  Robbins,  9  Mete.  R.  83 ;  Hanks  v. 
McKee,  2  Litt.  R.  227.  In  accordance  with 
the  above  doctrine,  where  an  article  was  sold 
at  auction  as  barilla,  and  was  examined  by 
the  purchaser,  and  a  sample  exhibited  at  the 
sale,  and  the  article  turned  out  to  be  kelp, 
it  was  held,  that  there  was  no  warranty  ; 
Swett  V.  Colgate  et  al.,  20  Johns.  R.  196  ; 
and  generally  speaking,  in  executed  con- 
tracts, for  the  sale  of  personal  property, 
where  there  is  neither  fraud,  nor  express 
warranty,  the  purchaser  takes  the  property 
at  his  own  risk,  as  to  the  quality  and  con- 
dition ;  Moses  et  al.  v.  Mead  et  al.,  1  Denio's 
R.  378,  S.  C.  5  Id.  617  ;  Ricks,  Admr.,  v.  Dil- 
lahunty,  8  Port.  R.  134  ;  Lindsay  v.  Davis,  30 


Mo.  R.  406  ;  DemingtJ.  Foster,  42N.  H.  R.  165. 
Some  of  the  States  hold,  that  a  sound  price 
implies  a  sound  commodity  ;  this  is  the  law 
of  North  and  South  Carolina  ;  Crawford  v. 
Wilson.  2  Constitutional  R.  352  ;  Whitefield 
V.  McLeod,  2  Bay's  R.  380  ;  State  v.  Gaillard 
et  al..  Id.  19  ;  Lester  v.  Exrs.  of  Grahnm,  1 
Constitutional  R.  182  ;  Timrod  v.  Shoolbred, 
1  Bay's  R.  324  :  Barnard  v.  Yates,  1  N.  & 
McC.  R.  142  ;  Missroon  et  al.  v.  Waldo  et 
al..  2  Id.  76  ;  Rose  et  al.  v.  Beatie,  2  N.  <fc 
McC.  R.  538 ;  Ashley  v.  Reeves,  2  McC.  R, 
432  ;  Toris  f.  Long,  1  Tayl.  R.  17  ;  Vaughan 
V.  Campbell,  2  Brev.  R.  53  ;  Furman  v.  Mil- 
ler, Id.  127  ;  but  most  of  the  States  entirely 
repudiate  this  doctrine ;  Seixas  et  al.  v. 
Woods,  2  Caines's  R.  48  ;  Fleming  v.  Slocum, 
18  Johns.  R.  403  ;  Johnston  v.  Cope  et  al.,  3 
Har.  &  Johns.  R.  89  ;  Penniman  v.  Pierson, 
Chip.  (Vt.)  R.  394  ;  Dean  v.  Mason,  4  Conn. 
R.  428  ;  Cozzins  v.  Whitaker,  3  Stew,  k  Port. 
R.  322  ;  Hart  et  al.  v.  Wright,  17  Wend.  R. 
267,  S.  C,  18  Id.  449  ;  West  v.  Cunningham, 
9  Port.  R.  104  ;  Mixer  et  al.  v.  Coburn,  11 
Mete.  R.  559  ;  Hoe  v.  Sanborn,  21  N.  Y.  R. 
552  ;  Weimer  v.  Clement,  37  Pa.  St.  R.  147  ; 
Mason  v.  Chappell,  15  Gratt.  R.  572;  and 
in  those  States,  where  this  principle  is  ac- 
knowledged, it  is  held,  that  there  will  not 
be  an  implied  warranty  of  soundness,  in  a 
case  free  from  fraud,  where  the  purchaser  is 
acquainted  with  the  defect  in  the  article  sold  ; 
Britain  v.  Israel  et  al.,  3  Hawks's  R.  222; 
Miller  v.  Yarborough,  1  Rich.  R.  48  ;  Por- 
cher,  ffrfi. Caldwell,  2  McM.  R.  329  ;  Exrs.  of 
Hart  V.  Edwards,  2  Bail.  R.  306  ;  Williams 
V.  Vance,  Admr.,  Dudley's  L.  &  Eq.  R.  97; 
Lyles  V.  Bass,  Cheeves's  L.  k  Eq.  R.  85; 
Venning  v.  Gault,  Id.  87  ;  Watson  et  al., 
Admr.,  v.  Boatwright,  1  Rich.  R.  402  ;  Wood, 
Admr.,  v.  A.she,  1  Strobh.  R.  407;  Hudgins 
V.  Perry,  7  Ired.  R.  102  ;  of  course  there  can 
be  no  implied  warranty,  from  a  sound  price, 
where  the  vendor  positively  refuses  to  war- 
rant ;  Farr  v.  Gist,  1  Rich  R.  68  ;  McLean 
V.  Green,  2  McM.  R.  17  ;  Limehouse  v.  Gray, 
3  Brev.  R.  321. 


OF   TITLE. 


509 


If  goods  and  chattels  should  have  come  into  the  possession  of 
persons  having  no  title  to  them,  such  persons  will,  in  course  of 


In  cases  of  sales  by  sample,  most  of  the 
decisions  maintain  that  the  vendor  is  respon- 
sible, if  the  quality  of  the  bulk  of  the  com- 
modity is  not  equal  to  the  sample  shown  ;  The 
Oneida  Manufacturing  Co.  v.  Laurence  et  al., 
4  Cow.  R.  440  ;  Rose  et  al.  v.  Beatie,  2  N.  & 
McC.  R.  538  ;  Gallagher  et  al.  v.  Waring,  9 
Wend.  R.  20  ;  Moses  et  al.  v.  Mead  et  al.,  1 
Denio's  R.  378,  S.  C,  5  Id.  617;  Magee  v. 
Billingsley,  3  Ala.  R.  679  ;  Brantley  v. 
Thomas,  22  Tex.  R.  270  ;  and  this  principle 
has  been  held  to  apply,  even  though  the  pur- 
chaser himself  takes  a  sample  from  the  goods; 
Beebe  v.  Robert,  12  Wend.  R.  413  ;  Boorman 
V.  Jenkins,  Id.  566  ;  Williams  v.  SpaflFord,  8 
Pick.  R.  250  ;  but  in  Pennsylvania,  where 
there  is  a  sale  by  sample,  there  is  no  implied 
warranty  that  the  quality  of  the  goods  shall 
be  the  same  as  the  sample,  but  merely  that 
they  shall  be  the  same  in  species  ;  Borrekins 
V.  Bevan  et  al.,  3  Raw.  R.  23  ;  Jennings  et 
al.  V.  Gratz,  Id.  168  ;  Willings  et  al.  v.  Con- 
sequa,  Pet.  C.  C.  R.  317,  S.  C,  Id.  172  ;  Car- 
son et  al.  V.  Baillie,  19  Pa.  St.  R.  376  ;  Lord 
V.  Grow,  39  Pa.  St.  R.  91  ;  Fraley  v.  Bisp- 
ham,  10  Pa.  St.  R.  320  ;  in  the  last  of  which 
decisions.  Judge  Coulter  says  :  "  If  that  ease" 
(Borrekins  v.  Bevan)  "  means  anything,  it 
means  this,  that  when  the  thing  is  sold  by 
sample,  and  without  express  warranty,  the 
purchaser  takes  it  at  his  own  risk,  unless  it 
should  •prove  to  be  an  article  diflFerent  in  kind  ; 
all  gradations  in  quality  are  at  the  hazard  of 
the  buyer  ;"  some  of  the  cases,  however,  seem 
to  hold  an  intermediate  doctrine,  deciding 
that  there  is  an  implied  warranty,  that  a 
sample  taken  in  the  usual  way,  is  a  fair  speci- 
men of  the  thing  sold  ;  Sands  et  al.  v.  Taylor 
et  al.,  5  Johns.  R.  404;  Hargons  v.  Stone,  1 
Seld.  R.  73  ;  Bevine  et  al.  v.  Dord,  2  Sandf. 
S.  R.  95;  and  in  Bradford  v.  Manly,  13 
Mass.  R.  139,  it  was  held,  that  a  sale  by 
sample,  is  tantamount  to  a  warranty,  that  the 
article  sold  is  of  the  same  kind  with  the 
sample  ,  but  if  an  opportunity  has  been  given 
for  examination  or  inspection,  it  is  a  strong 
circumstance  to  prove  that  the  sale  has  not 
been  by  sample ;  Bevine  et  al.  v.  Dord,  2 
Sandf.  S.  R.  89. 


In  the  sale  of  provisions  for  domestic  use, 
there  is  an  implied  warranty  of  freshness  ; 
Van  Bracklin  v.  Fonda,  12  Johns.  R.  468  ; 
Moses  et  al.  v.  Mead  et  al.,  1  Denio's  R.  378, 
S.  C,  5  Id.  617  ;  but  the  circumstances  of 
the  sale  may  be  such,  that  there  will  be  no 
implied  warranty,  as  where  the  vendor  equally 
with  the  vendee,  relies  upon  the  brand  of  the 
inspector,  or  the  goods  are  not  sold  for  con- 
sumption ;  Emerson  v.  Brigham,  10  Mass.  R. 
197  ;  Jones  v.  Murray,  Ac,  3  Mon.  R.  83  ; 
Moses  et  al.  v  Mead  et  al.,  1  Denio's  R.  378, 
S.  C.  5  Id.  617 ;  Hyland  v.  Sherman,  2  E.  D. 
Smith's  R.  234  ;  and  generally,  wherever  ar- 
ticles are  sold  for  a  particular  use  or  purpose, 
there  is  an  implied  warranty  that  they  are  fit 
for  that  purpose  ;  Brenton  v  Davis,  8  Blackf. 
R.  89  ;  Otts  V.  Alderson,  10  Smed.  &,  Mar.  R. 
480 ;  Singleton's  Admr.  v.  Kennedy,  9  B. 
Mon.  R.  222  ;  Beals  v.  Olmstead,  24  Vt.  R. 
114;  Cunningham  v.  Hall,  Sprague's  R.  404  ; 
Rodgers  v.  Niles,  11  0.  R.  (N.  S.)  48  ;  Over- 
ton V.  Phelan,  2  Head's  R.  445  ;  Brown  v. 
Murphee,  31  Missi.  R  91  ;  Fish  v.  Tank,  12 
Wis.  R.  276  ;  but  where  there  is  no  fraud  in 
the  seller,  neither  snppressio  veri  not  siigges- 
tio  falsi,  and  the  purchaser  is  in  possession 
of  all  the  information  necessary,  to  enable  him 
to  make  a  correct  estimate  of  the  value  of  the 
thing  he  is  about  to  purchase,  or  which  from 
its  nature  would  occur  to  an  ordinary  ob- 
server, the  law  will  not  raise  an  implied  war- 
ranty on  the  part  of  the  seller,  that  it  shall 
answer  the  purpose  for  which  the  purchaser 
bought  it ;  Carnochan  v.  Gould,  1  Bail.  R. 
179. 

Where  a  purchase  is  made  without  an  ex- 
amination, or  an  opportunity  for  it,  it  seems 
that  there  is  an  implied  warranty  the  thing 
sold  shall  be  merchantable  ;  Gallagher  et  al. 
V.  Waring,  9  Wend.  R.  20,  S.  C.  18  Id.  425  ; 
Howard  et  al.  v  Hoey,  23  Id.  350  ;  Fi-^^h  v. 
Roseberry,  22  111.  R.  288  ;  Lanata  y.  O'Brien, 
13  La.  An.  R.  229  ;  and  there  may  be  nn  im- 
plied warranty  by  custom  ;  but  it  must  be 
either  a  general  usage,  or  both  plaintiflf  and 
defendant  must  be  acquainted  with  the  cus- 
tom, in  order  to  raise  the  warranty  ;  Stevens 
V.  Smith,  21  Vt.  R.  90.     Where  it  is  custom- 


510 


OF   TITLE. 


time,  be  quieted  in  tlieir  enjoyment  by  virtue  of  the  Statute  of 
Limitations.(f)    By  this  statute  all  actions  of  trespass,  detinue,  and 


(»■)   Stat.  21  Jac.  I,  c.  16. 


ary  to  examine  an  article  before  shipping  it 
away,  it  has  been  held,  that  the  purchaser 
who  neglects  to  do  so,  admits  the  quality  to 
be  good  ;  Vanderhorst  &  Co.  v.  McTaggart, 
2  Bay's  R.  498.  And  see  Thompson  v.  Ash- 
ton,  14  Johns.  R.  316. 

In  everysale  of  a  note,  or  other  negotiable 
instrument,  there  is  an  implied  warranty  of 
genuineness;  Turner  v.  Tuttle,  1  Root's  R. 
350  ;  Jonson  v.  Titus  et  al.,  2  Hill's  R.  60f) ; 
Herrick  v.  Whitney  et  al.,  15  Johns.  R.  240  ; 
Coolidge  V.  Brigham,  1  Mete.  R.  547,  S.  C, 
6  Id.  68;  Thrall  v.  Newall,  19  Vt.  R.  203; 
Aldrich  v.  Jackson,  5  R.  I.  R.  218;  Thomp- 
son V.  McCullough,  31  Mo.  R.  224;  but  in 
the  sale  and  assignment  of  a  judgment,  with- 
out recourse,  it  is  not  warranted  that  the 
proceedings  are  free  from  error;  Glass  v. 
Reed,  2  Dana's  R.  168.  In  the  .«ale  of  every 
personal  chattel,  there  is  an  implied  warranty 
of  title;  Defreeze  v.  Trumper,  1  Johns.  R. 
274;  Rew  v.  Barber,  3  Cow.  R.  272;  Herm- 
ance  v.  Vernoy,  6  Johns.  R.  5 ;  Gookin  et 
al.  V.  Graham  et  al.,  5  Hump.  R.  480  ;  Ricks, 
Admr.,  v.  Dillahunty,  8  Port.  R.  134  ;  Boyd 
V.  Bopst,  1  Dal.  R.  91;  Chism  v.  Woods, 
Hard.  R.  231 ;  Forsythe,  &c.,  v.  Ellis,  4  J.  J. 
Marsh.  R.  298;  Lanier  v.  Auld,  Admr.,  1 
Murp.  R.  138  ;  Moore  et  al.  v.  Laugham,  3 
Hill's  (S.  C.)  R.  299;  Chancellor  v.  Wig- 
gins, 4  B.  Mon.  R.  201  ;  Trigg  v.  Paris,  5 
Hump.  R.  343;  Charlton  v.  Lay,  Id.  496; 
McCoy  et  al.  v.  Artcher,  3  Barb.  S.  R.  323 ; 
Dorsey  v.  Jackman,  1  Serg.  &  Raw.  R.  42 ; 
Lines  v.  Smith,  4  Fla.  R.  47 ;  Beninger  v. 
Corwin,  4  Zabr.  R.  257 ;  Robinson  v.  Rice, 
20  Mo.  R.  229;  Sherman  v.  Champlain 
Trans.  Co.,  31  Vt.  R.  162;  Williamson  v. 
Sammons,  34  Ala.  R.  691  ;  and  it  extends  to 
freedom  from  prior  liens  or  incumbrances; 
Dresser  v.  Ainsworth,  9  Barb.  S.  R.  619  ;  but 
where  the  sale  of  personal  property  is  by  a 
sheriff,  constable,  or  other  judicial  officer,  or 
by  an  executor,  administrator,  or  other  trus- 
tee ;  or  if  the  article  sold  is  not,  at  the  time 
of  sale,  in  the  possession  of  the  owner,  but  in 
that  of  some  third  person,  there  is  no  implied 


warranty  of  title  ;  Morgan  v.  Fencher,  1 
Blackf.  R.  10  ;  The  Monte  Allegre,  9  Wheat. 
R.  616;  Davis  v.  Murray,  2  Constitutional 
R.  143;  Robinson  v.  Cooper,  1  Hills  (S.  C.) 
R.  286 ;  Fuller  v.  Fowler,  1  Bail.  R.  75 
Ricks,  Admr.,  v.  Dillahunty,  8  Port.  R.  1.34 
Forsythe,  <Sec.,  v.  Ellis,  4  J.  J.  Marsh  R.  298 
Hensley  v.  Baker,  10  Mo.  R.  157;  McCoy  et 
al.  V.  Artcher,  3  Barb.  S.  R.  323  ;  Edick  v. 
Crim,  10  Barb.  S.  R.  445  ;  Worthy  et  al.  v. 
Johnson  et  al.,  8  Geo.  R.  236  ;  Scott  v.  Hix, 
2  Sneed's  R.  192  ;  Long  v.  Hickingbottom, 
28  Missi.  R.  772;  where,  however,  a  judicial 
officer  "  steps  out  of  his  official  dutj',  and 
does  what  the  law  has  given  him  no  authority 
to  do,  he  may  make  himself  personally  re- 
sponsible;" The  Monte  Allegre,  9  Wheat.  R. 
616. 

The  law  of  implied  warranties  extends  as 
well  to  cases  of  exchange,  as  to  those  of  pur- 
chase ;  Rivers  v.  Crugett,  1  McCord's  R.  100. 

Where  an  express  warranty  has  been  given, 
it  does  not  matter  whether  the  seller  knew 
any  unsoundness  in  the  chattel  sold  or  not, 
for  in  either  case  he  will  be  responsible ; 
Kimmel  v.  Lichty,  3  Yeat  R.  262  ;  Smith  v. 
Williams,  1  Car.  L.  Repos.  263,  n.  ;  Ricks, 
Admr.,  v.  Dillahunty,  8  Port.  R.  134  ;  Bee- 
man  V.  Buck,  3  Vt.  R.  53  ;  Carley  v.  Wilkins, 
6  Barb.  S.  R.  557  ;  Tyre  v.  Causay,  4  Har- 
ring.  R.  426;  Bartholomew  v.  Bushnell,  20 
Conn.  R.  271 ;  Trice  v.  Cochran,  8  Gratt  R. 
442  ;  such  a  warranty,  however,  does  not  ex- 
tend to  anything  not  included  within  its 
terms;  Porcher,  ads,  Caldwell,  2  McMull.  R. 
329  ;  Stucky  v.  Clyburn,  Cheeves's  L.  i  Eq.  R. 
186;  Rodrigues,  ads,  Habersham,  1  Spears's 
R.  314  ;  McLaughlin  v.  Horton,  1  Hill's  (S. 
C.)  R.  383  ;  Wood,  Admr.,  v.  Ashe,  1  Strobh. 
R.  407  ;  thus,  a  warranty  of  quality  is  no 
warranty  of  value  ;  Lightburn  v.  Cooper,  1 
Dana's  R.  274;  nor  will  one  of  title  extend 
to  soundness  ;  Smith,  &e.,  v.  Miller,  2  Bibb's 
R.  617;  Wells  v.  Spears,  1  McCord's  R.  421 ; 
Hughes,  ads.  Banks,  Id.  537  ;  nor  will  quan- 
tity cover  quality;  Jones  v.  Murray,  &c.,  3 
Mon.   R.  83;  Taymon  v.  Mitchell   et  al.,   1 


OF    TITLE. 


611 


replevin  for  goods  or  cattle  must  be  brought  within  six  years 
next  after  the  cause  of  such  action  ;{j)  but  if  the  person  entitled 
to  such  action  be  under  age,  feme  covert,  or  non  compos  mentis,  such 
person  shall  be  at  liberty  to  bring  the  same  action  within  six  years 
after  the  disability  is  removed. (A-)  The  disabilities  of  absence  be- 
yond seas  and  imprisonment  have  been  abolished  by  a  recent 
statute.  (^)* 


(_;■)  Sect.  3. 

(/)  Stat.  19  &  20  Vict.  c.  97,  ss.  10,  12. 


(i)  Sect.  7. 


Md.  C.  Decs.  496  ;  but  in  those  places  where 
a  sound  price  implies  a  sound  article,  an  ex- 
press warranty  of  title  will  not  exclude  an 
implied  warranty  of  soundness  ;  Roderigues, 
ads,  Habersham,  1  Spears's  R.  314  ;  Wells  v. 
Spears,   1   McCord's  R.  421  ;   Wood  v.  Ashe, 

3  Strobh.  R.  64.  Even  an  express  warranty, 
will  not  extend  to  open  and  palpable  defects  ; 
Schuyler  v.  Russ,  2  Gaines's  R.  202  ;  Long  v. 
Hicks,  2  Hump.  R.  306  ;  Caldwell  v.  Smith. 

4  Dev.  &  Bat.  R.  64;  Stucky  v.  Clyburn, 
Cheeves's  L.  &  Eq.  R.  186;  Mulvany  v. 
Rosenberger,  18  Pa.  St.  R.  203  ;  Fisher  v. 
Pollard,  2  Head's  R.  314  ;  bence  a  wilful 
and  fraudulent  representation,  by  the  seller 
of  a  fire  engine,  that  it  was  as  good  as 
another  designated  engine,  and  a  warranty 
that  it  would  perform  as  well  as  any  other  in 
the  western  country,  is  not  to  be  considered 
violated,  because  the  warranted  engine  is 
inferior  to  others  in  the  country,  much  larger 
and  more  costly,  if  the  inferiority  be  evident 
to  a  common  observer;  The  President,  &c., 
V.  Wadleigh,  7  Blaekf.  R.  102  ;  but  see  Wil- 
son V.  Ferguson,  Cheeves's  L.  &  Eq.  R.  190. 

In  the  case  of  Otts  v.  Alderson,  10  Smed. 
&  Mar.  R.  480,  Judge  Clayton,  in  speaking  of 
warranties,  uses  the  following  language  :  "  On 
this  subject  the  general  rule  is,  that  the  pur- 
chaser buys  at  his  own  peril,  caveat  emptor, 
unless  the  seller  either  give  an  express  war- 
ranty, or  unless  the  law  imply  a  warranty  from 
the  circumstances  of  the  case,  or  the  nature  of 
the  thing  sold  ;  or  unless  the  seller  be  guilty 
of  fraudulent  representation,  or  concealment, 
in  respect  to  a  material  inducement  to  the 
sale.  No  particular  form  of  words  is  neces- 
sary, to  the  creation  of  a  warranty — any  af- 
firmation  or  representation,   in   relation    to 


the  article  sold,  is  suflficient,  if  it  be  intended 
to  have  that  effect.  There  is  certainly  a  ten- 
dency in  modern  cases  ...  to  extend  the 
doctrine  of  implied  warranty  .  .  .  1st.  A 
warrant  is  implied,  that  the  seller  has  title. 
2d.  That  the  articles  are  merchantable,  when, 
from  their  nature  or  situation  at  the  time  of 
the  sale,  an  examination  is  impracticable. 
This  rule  is  most  frequently  brought  into  re- 
quisition where  the  seller  is  a  manufacturer. 
3d.  Upon  an  executory  contract  to  manufac- 
ture an  article,  or  to  furnish  it  for  a  particu- 
lar use  or  purpose,  a  warranty  will  be  implied, 
that  it  is  reasonably  fit  and  proper  for  such 
purpose  and  use,  as  far  as  any  article  of  such 
kind  can  be.  4th.  A  warranty  is  implied, 
against  all  latent  defects,  in  two  cases  ;  first, 
where  the  seller  knew  the  buyer  did  not  rely 
on  his  own  judgment,  but  on  that  of  the 
seller,  who  knew,  or  might  have  known,  the 
existence  of  the  defects  ;  and,  second,  where 
a  manufacturer,  or  producer,  undertakes  to 
furnish  articles  of  his  manufacture  or  pro- 
duce, in  answer  to  an  order.  5th.  That 
goods  sold  by  sample,  correspond  with  the 
sample,  in  quality.  Another  exception  to 
the  rule,  that  a  purchaser  ordinarily  buys  at 
his  own  risk,  is,  where  the  vendor  has  been 
guilty  of  fraudulent  representation  or  con- 
cealment." 

1  The  time  within  which  a  personal  action 
may  be  brought,  is  different  in  the  different 
States.  In  Pennsylvania,  by  an  act  of  the 
27th  of  March,  1713,  it  is  enacted,  that  "All 
actions  of  trespass  guar?  clausum  fregit,  all 
actions  of  detinue,  trover,  and  replevin,  for 
taking  away  goods,  and  cattle,  all  actions 
upon  account,  and  upon  the  case,  other  than 
such  accounts  as  concern  the  trade  of  mer- 


512 


OF   TITLE. 


Choses  in  action,  whetlier  legal  or  equitable,  differ  from  choses 
in  possession  in  this,  that  the  title  to  them  is  endangered  rather 
than  strengthened  by  the  Statutes  of  Limitation.  This  difference 
arises  from  the  nature  of  the  property.  Goods  and  chattels  may 
exist  without  any  owner ;  but  if  there  cease  to  be  a  person  en- 
titled to  a  debt,  the  debt  itself  ceases  to  exist.  The  time  within 
which  actions  or  suits  may  be  brought  for  the  recovery  of  choses 
in  action  varies  according  to  the  nature  of  the  security.  The  law 
on  this  subject  has  been  rendered  somewhat  difficult  by  two  dif- 
ferent acts  of  Parliament(m)  *varying  from  each  other, 
^  -^  each  passed  the  same  session  of  Parliament,  and  each  in- 
tended to  amend  the  law.  The  following,  however,  appear  to  be 
the  distinctions.  If  the  chose  in  action  be  money  secured  by  any 
mortgage,  judgment,(n)  or  lien,  or  otherwise  charged  upon  or 


(w)  stats.  3  &  4  Will.  IV,  cc.  27,  42. 


(«)    Watson  V.  Birch,  15  Sim.  523. 


cbandise,  between  merchant  and  merchant, 
their  factors  or  servants,  all  actions  of  debt, 
grounded  upon  any  lending  or  contract,  with- 
out specialty,  all  actions  of  debt  for  arrearages 
of  rent,  except  the  proprietaries'  quit-rents, 
and  all  actions  of  trespass,  of  assault,  menace, 
battery,  wounding,  and  imprisonment,  of  any 
of  them,  which  shall  be  sued  or  brought  at 
any  time  after  the  25th  day  of  April,  which 
shall  be  in  the  year  of  our  Lord,  1713,  shall 
be  commenced  and  sued  within  the  time  and 
limitation  hereafter  expressed,  and  not  after  ; 
that  is  to  say,  the  said  actions  upon  the  case, 
other  than  for  slander,  and  the  said  actions 
for  account,  and  the  said  actions  for  trespass, 
debt,  detinue,  and  replevin,  for  goods  or  cat- 
tle, and  the  said  actions  of  trespass  quare 
clausxim,  f regit,  within  six  years  next  after 
the  cause  of  such  actions  or  suit,  and  not 
after.  And  the  said  actions  of  trespass,  of 
assault,  menace,  battery,  wounding,  impris- 
onment, or  any  of  them,  within  two  years 
next  after  the  cause  of  such  actions  or  suits, 
and  not  after.  And  the  said  actions  upon 
the  case  for  words,  within  one  year  next  after 
the  words  spoken,  and  not  after  ;"  Purd.  Dig. 
(1861),  p.  655. 

In  New  Hampshire,  it  is  provided,  that 
"  Actions  for  words,  and  for  any  assault,  bat- 
tery, wounding,  or  imprisonment,  shall  be 
brought  within  tvro  years  after  the  cause  of 
action  accrued,  and  not  afterward.     All  other 


personal  actions  should  be  brought  within 
six  years  after  the  cause  of  action  accrued, 
and  not  afterwards.  Actions  of  debt,  founded 
upon  any  judgment  or  recognizance,  or  upon 
any  contract  under  seal,  may  be  brought 
within  twenty  years  after  the  cause  of  action 
accrued  ;"  N.  H.  Compil.  Stats.,  p.  461,  sees. 
3,  4,  5.  For  the  statutes  of  limitation  of 
personal  actions,  of  some  of  the  States,  see 
Stats,  of  S.  C.  vol.  ii,  p.  585,  Ac;  Caruthers 
&  Nicholson's  Stat.  Ls.of  Tenn.,  p.  439,  Ac, 
Ls.  of  Del.  Rev.  Code  (1852),  p.  440,  Ac; 
Dig.  of  the  Stats,  of  Arkansas,  p.  696,  Ac; 
How.  A  Hutch.  Stat.  Ls.  of  Missi.,  p.  569, 
Ac;  New  Dig.  Ls.  of  Ga.  (1851)  by  T.  R.  R. 
Cobb,  vol.  1,  pp.  561,  562,  564,  666  ;  Thomp- 
son's  Dig.  Ls.  of  Fla.,  p.  441,  Ac;  Rev.  Stats, 
of  Vt.  (1839),  p.  305,  Ac;  Clay's  Ala.  Dig.  p. 
326,  Ac;  Rev.  Stats,  of  N.  C.  (1836-7),  p.  372, 
Ac;  Oldham's  A  White's  Dig.  of  the  Ls.  of 
Tex.  (1859),  pp.  301  to  303;  2  Matthews's 
Dig.  Va.  (1857),  p.  405,  Ac;  3  Rev.  Stats,  of 
New  York  (5th  ed.),  p.  505  ;  Compiled  Ls.  of 
Michigan,  vol.  ii  (1857),  p.  1406,  Ac;  1  Md. 
Code  (1860),  p.  395,  Ac;  Gen.  Stats,  of  Mass. 
(1860)  p.  777,  Ac;  Rev.  Stats,  of  Maine  (1857) 
p.  509,  Ac;  Nixon's  Dig.  of  N.  J.  (1861)  p. 
469,  Ac  ;  2  Rev.  Stats,  of  Ky.  (1860)  p.  126, 
Ac;  2  Rev.  Stats,  of  0.  (1860)  p.  947,  Ac; 
Wood's  Cal.  Dig.  (1860),  p.  45,  Ac;  Rev. 
Stats,  of  Missi.  (1845),  p.  716,  Ac. 


OF    TITLE.  513 

payable  out  of  any  real  estate  at  law  or  in  equity,  or  any  legaey,(o) 
or  the  personal  estate  or  any  share  of  the  personal  estate  of  a 
person  who  has  died  intestate, (p)  no  action  or  suit  can  be  brought 
to  recover  the  same  but  within  twenty  years  next  after  a  present 
right  to  receive  the  same  shall  have  accrued  to  some  person  capa- 
ble of  giving  a  discharge  for  or  release  of  the  same ;  unless  in 
the  meantime  some  part  of  the  principal  money,  or  some  interest 
thereon,  shall  have  been  paid,  or  some  acknowledgment  of  the 
right  thereto  shall  have  been  given  in  writing  signed  by  the  per- 
son by  whom  the  same  shall  be  payable,  or  his  agent,(5')  to  the 
person  entitled  thereto  or  his  agent ;(?')  and  in  such  case  no  such 
action  or  suit  shall  be  brought  but  within  twenty  years  after  such 
payment  or  acknowledgment,  or  the  last  of  such  payments  or 
acknowledgments,  if  more  than  one,  was  made  or  given. (s)  If 
the  chose  in  action  be  rent  due  upon  an  indenture  of  demise,  or 
money  secured  by  bond  or  other  specialty,  or  by  a  recognizance, 
an  action  must  also  be  brought  within  twenty  years  after  the  cause 
of  such  action, (^)  or  within  twenty  years  after  the  removal  of  any 
of  the  disabilities  of  infancy,  coverture,  or  lunacy.(w)  And  if  any 
person  against  whom  there  is  any  such  cause  of  action  shall  be 
beyond  the  seas  at  the  time  of  such  cause  of  action  accrued,  the 
*person  entitled  to  any  such  cause  of  action  may  bring  the  1-^07,9-1 
same  against  him  within  twenty  years  after  his  return. (r)  ^  "^ 
And  the  absence  of  a  joint  debtor  beyond  the  seas  will  not  pre- 
vent time  from  running  in  favor  of  the  others,  who  may  not  be 
beyond  the  seas;  and  the  recovery  of  judgment  against  them 
will  not  prevent  the  creditor  from  commencing  an  action  against 
the  absent  debtor  after  his  returu.(a:)  K  any  acknowledgment 
shall  have  been  made,  either  by  wi'iting  signed  by  the  party 
liable,(  y)  or  his  agent,  or  by  part  payment  or  part  satisfaction  on 
account  of  any  principal  or  interest  then  due,  the  person  entitled 
may  bring  his  action  for  the  money  remaining  unpaid,  and  so 

(o)  Sheppard  v.  Dube,  9  Sim.  567.  (p)  Stat.  23  &  24  Vict.  c.  38,  s.  13. 

(q)  Lord  St.  John  v.  Boughton,  9  Sim.  219. 

(/■)   Blair  v.  Nugent,   3  Jones  &  Lat.  673,  677. 

(s)  Stat.  3  &  4  Will.  IV,  c.  27,  s.  40. 

{t)  Stat.  3  &  4  Will.  IV,  c.  42,  s.  3. 

(m)   Stat.  3  &  4  Will.  IV,  c.  42,  s.  4 ;  19  &  20  Vict.  c.  97,  s.  10. 

(v)  Stat.  3  &  4  Will.  IV,  c.  42,  s.  4. 

{X)   Stat.  19  &  20  Vict.  c.  97,  s.  11. 

(y)   See  Roddam  v.  Morley,  1  De  Gex  &  Jones,  1 ;  Moodie  v.  Bannister,  4  Drew.  432. 

33 


514  OF    TITLE. 

acknowledged  to  be  due,  within  twenty  years  after  such  acknow- 
ledgment, or  within  twenty  years  after  any  of  the  above-men- 
tioned disabilities  shall  have  ceased,  or  the  party  liable  shall  have 
returned  from  beyond  the  seas,  as  the  case  may  be. (2)  If  the 
chose  in  action  consist  of  arrears  of  dower,  neither  such  arrears 
nor  damages  on  account  thereof  can  be  recovered  or  obtained 
by  any  action  or  suit  for  a  longer  period  than  six  years  next  be- 
fore the  commencement  of  such  action  or  suit.(a)  Arrears  of  rent 
or  of  interest  in  respect  of  any  sum  of  money  charged  upon  or 
payable  out  of  any  real  estate  or  in  respect  of  any  legacy,  can  be 
recovered  only  within  six  years  next  after  the  same  shall  have  be- 
come due,  or  next  after  an  acknowledgment  of  the  same  in 
writing  shall  have  been  given  to  the  person  entitled  thereto,  or 
his  agent,  signed  by  the  person  by  whom  the  same  was  payable, 
or  his  ao:ent.(6)  But  if  such  arrears  are  secured  *to  the 
•-  -^  claimant(c)  by  indenture  of  demise, (c/)  or  by  bond  or  other 
specialty, (e)  an  action  of  debt  or  covenant  may  be 'brought  for 
such  arrears  at  any  time  within  twenty  years.  And  where  a 
mortgagee  or  other  incumbrancer  shall  have  been  in  possession  of 
any  real  estate  within  one  year  next  before  the  action  or  suit  of 
a  subsequent  mortgagee  or  incumbrancer,  the  latter  may  recover 
the  arrears  of  interest  which  may  have  become  due  to  him  during 
the  whole  time  that  the  prior  mortgagee  or  incumbrancer  was  in 
possession. (/)  If  the  chose  in  action  consist  of  a  simple  con- 
tract debt,  it  must  be  sued  for  within  six  years  next  after  the  cause 
of  action,  or  within  six  years  next  after  the  removal  of  any  of  the 
disabilities  of  infancy,  coverture,  or  lunacy. (_(/)  And  no  acknow- 
ledgment or  promise  by  words  only  to  pay  such  debt  shall  be 
deemed  sufficient  evidence  of  a  new  or  continuing  contract  to 
take  the  case  out  of  the  operation  of  the  statute,  unless  such  ac- 

(2)   Stat.  3  &  4  Will.  IV,  c.  42,  s.  5  ;  Kempe  v.  Gibbon,  9  Q.  B.  609,  E.  C.  L.  R.  vol.  58. 
{a)  Stat.  3  &  4  Will.  IV,  c.  27,  s.  41. 

(b)  Stat.  3  &  4  Will.  IV,  c.  27,  s.  42;  Hodges  v.  Croydon  Canal  Company,  3  Beav.  86  ; 
Francis  v.  Grover,  5  Hare,  39  ;  Humfrey  v.  Gery,  7  C.  B.  567,  E.  C.  L.  R.  vol.  62.  See 
Toft  V.  Stevenson,  5  Be  Gex,  M.  &  G.  735. 

(c)  Hughes  V.  Kelly,  3  Dru.  &  Warren,  482. 

(d)  Paget  V.  Foley,  2  New.  Ca.  679,  E.  C.  L.  R.  vol.  29. 

(e)  Sims  V.  Thomas,  12  Ad.  &  Ell.  536,  E.  C.  L.  R.  vol.  40  ;  Hunter  v.  Nockolds,  1  Mac. 
&  Gord.  640.  See  Elvy  v.  Norwood,  5  Be  Gex  &  Smale,  240  j  Sinclair  «.  Jackson,  17  Beav. 
405. 

(/)   Stat.  3  &  4  Will.  IV,  c.  27,  s.  42. 

(g)  Stat.  21  Jac.  I,  c.  16,  ss.  3,  7  :  19  &  20  Vict.  c.  97,  ss.  10,  12. 


OF    TITLE.  615 

knowledgment  or  promise  shall  be  made  in  writing,  signed  by 
the  party  chargeable  thereby(/i)  or  his  agent.{iy  Actions  of  debt 
upon  any  award  where  the  submission  is  not  by  specialty,  or  for 
any  fine  due  in  respect  of  any  copyhold  estates,  or  for  an  escape, 
or  money  levied  on  any  fieri  facias,  must  also  be  brought  within 
six  years  after  the  cause  of  action,  with  a  similar  saving  in  respect 
of  disabilities  to  that  applicable  in  the  case  of  actions  on  inden- 
tures of  demise,  bonds,  or  other  specialties. (/c)  And  actions 
for  penalties,  damages,  or  sums  of  money  given  to  the  party 

*grieved  by  any  statute  now  or  hereafter  to  be  in  force,  ^  ^^.^ 

.    .  r  3741 

must  be  brought  within  two  years  after  the  cause  of  such  '-        -* 

actions,  with  the  like  saving  in  respect  of  disabilities,  unless  the 

time  for  bringing  such  action  is  or  shall.be  by  an}'^  statute  specially 

limited.  (?) 

When  a  cause  of  action  accrues  to  a  person  in  his  lifetime,  the 
time  limited  by  the  Statutes  of  Limitation  will  run  on  after  his 
decease  from  the  period  that  the  cause  of  action  accrued,  and  will 
not  be  recknoned  from  the  time  that  administration  was  taken 
out  to  his  effects. (m)  But  if  the  cause  of  action  accrue  after  the 
death  of  the  party,  the  time  limited  by  the  statute  will  run  only 
from  the  grant  of  the  letters  of  administration. (n)  On  the  other 
hand,  the  death  of  the  debtor  and  the  absence  of  any  personal 
representative  to  his  effects,  will  not  prevent  the  time  limited  by 
the  statute  from  continuing  to  run  on.  For  if  there  be  once  a 
cause  of  action,  a  plaintifif  that  can  sue,  and  a  defendant  that  can 
be  sued  in  England,  the  time  limited  by  the  statute  will  begin  to 
run,  and  will  not  be  stopped  by  the  decease  of  either  party.(o) 
An  executor  or  administrator  is  not,  however,  bound  to  plead 
the  Statute  of  Limitations  to  any  debt  or  demand,  but  may,  if 
he  please,  pay  the  same,  notwithstanding  the  time  limited  by  the 

(/i)   Stat.  9  Geo.  IV,  c.  14,  s.  1. 

(i)  Stat.  19  &  20  Vict.  c.  97,  s.  13 ;  see  ante,  pp.  72,  78. 

(k)   Stat.  3  &  4  Will.  IV,  c.  42,  ss.  3,  4 ;  see  aiite,  p.  371. 

(I)   Stat.  3  &  4  Will.  IV,  c.  42,  ss.  3,  4. 

{m)  2  Wms.  Saund.  63  k. 

{n)  Murray  V.  East  India  Company,  5  Barn.  &  Aid.  204,  E.  C.  L.  E.  vol.  7;  Perry  v. 
Jenkins,  1  Mylne  &  Cr.  118. 

(o)  Rhodes  v.  Smethurst,  6  Mee.  &  Wels.  351  j  Freake  v.  Cranefeldt,  3  Mylne  &  Cr.  499  ; 
Sturgis  V.  Darell,  6  H.  &  N.  120. 

1  See  aiUe,  p.  72,  notes. 


616 


OF   TITLE. 


statute  may  have  expired. (p)^  But  if  the  estate  be  administered 
in  the  Court  of  Chancery,  any  party  to  the  suit  is  competent  to 
take  the  objection,  although  the  executor  may  not  have  insisted 
on  it.(^) 


[*375] 


*]!^otwithstanding  the  period  of  six  years  limited  for  the 
payment  of  simple  contract  debts,  the  debtor  may,  by 
charging  his  real  estate  by  his  will  with  the  payment  of  his  debts, 
and  a  fortiori,  by  creating  an  express  trust  for  their  payment  out 
of  his  real  estate,  prevent  the  operation  of  the  statute  on  all  such 
debts  as  have  not  been  barred  by  the  statute  in  his  lifetime.(r) 

(p)  Norton  v.  Frecker,  1  Atk.  526  ;  Ex  parte  Dewdney,  15  Ves.  498.  See  Stahlschmidt 
V.  Lett,  1  Sma.  &  Giff.  415. 

{q)   Shewen  v.  Vanderhorst,  1  Russ.  &  M.  347  ;   2  Russ.  &  M.  75. 

(r)  Burke  v.  Jones,  2  Ves.  &  Beames,  275  ;  Hughes  v.  Wynne,  Turn.  &  Russ.  307;  Cral- 
lan  V.  Outton,  3  Beav.  1. 


1  An  executor  or  administrator  is  not 
bound  to  interpose  the  general  statute  of 
limitations,  in  bar  of  the  recovery  of  a  de- 
mand against  the  estate,  which  is  otherwise 
well  founded;  Hodgon,  Admr.,  v.  White  et 
al.,  11  N.  H.  R.  108  ;  Leigh,  Admr.,  v.  Smith 
et  al.,  3  Ired.  E.  R.  442  ;  AV alter  v.  Radcliffe, 
Admr.,  et  al.,  2  Degauss.  R.  577:  Kennedy's 
Appeal,  4  Pa.  St.  R.  149  ;  Brown  et  al., 
Admrs.,  v.  Porter,  7  Hump.  R.  373;  Barna- 
well  V.  Smith,  5  Jones's  Eq.  R.  168  ;  nor  can 
the  legatees  or  creditors  of  the  decedent  re- 
quire them  to  do  so  ;  In  the  matter  of  Smith, 
1  Ash.  R.  352  ;  Leigh,  Admr.,  v.  Smith  et  al., 
3  Ired.  E.  R.  442  ;  but  the  court  will  not 
allow  a  sale  of  the  real  estate  of  the  testator 
or  intestate,  for  the  purpose  of  paying  a  debt 
barred  by  the  statute  ;  The  Heirs  of  Bond, 
V.  Smith,  Admr.,  2  Ala.  R.  660.  Where, 
however,  for  the  more  speedy  settlement  of 
the  estates  of  decedents,  statutes  have  been 
passed,  enacting  that  all  claims,  not  pre- 
sented wiihin  a  certain  time  after  his  death, 
shall  be  barred,  it  is  the  duty  of  the  execu- 
tor or  administrator  to  plead  the  statute ; 
Hodgon,  Admr.,  V.  White  et  al.,  11  N.  H.  R. 
208;  Brown  v.  Anderson,  13  Mass.  R.  301; 
Thompson  v.  Brown,  16  Id.  172;  Emerson 
V.  Thompson,  Id.  429 ;  Heath  v.  Wells,  5 
Pick.  R.  140  ;  Tqnstall  et  al.  v.  Pollard's 
Admr.,  11  Leigh's R.  2;  Brown etal.,  Admrs., 
V.  Porter,  7  Hump.  R.  373. 


Whether  one  administrator  may  charge  the 
estate,  by  refusing  to  plead  the  statute  of 
limitations,  although  his  co-administrator  in- 
sist on  pleading  it,  is  doubted  ;  but  if  one  of 
the  administrators  stand  neutral,  the  other 
may  plead  the  statute  ;  Scull  et  al.,  Admrs., 
V.  Exrs.  of  Wallace,  15  Serg.  &  Raw.  R.  231. 

In  the  case  of  Smith  v.  Porter  etal.,  Exrs., 
1  Bin.  R.  209,  Chief  Justice  Tilghman,  in 
deciding  that  a  debt,  which  is  barred  by  the 
act  of  limitations,  is  not  revived  by  a  clause 
in  a  will,  ordering  all  the  testator's  just  debts 
to  be  paid,  says,  "  Whether  the  debts  are 
just  or  not,  must  be  left  to  the  judgment  of 
the  executor,  before  he  makes  a  voluntary 
payment  ;  and  if,  upon  a  candid  examination, 
he  thinks  a  debt  not  justly  due,  it  would  be 
doing  violence  to  the  words  of  the  testator, 
so  to  construe  them,  as  to  deprive  the  execu- 
tor of  the  legal  means  of  defence,  by  pleading 
the  act  of  limitations.  But  an  executor 
ought  not  to  plead  that  act  against  a  just 
debt ;  on  the  contrary,  if  he  knows  it  to  be 
just,  I  think  it  is  as  dishonest  in  him  to  use 
that  plea,  as  it  would  be  in  the  case  of  his 
own  debt."  But  since  the  decision  of  Lewis, 
J.,  in  Kittera's  Estate,  17  Pa.  St.  R.  423, 
prudence  would  suggest  to  an  administrator 
or  executor,  the  propriety  of  pleading  the 
statute,  whenever  applicable. 


OF   TITLE.  517 

Real  estate,  it  will  be  remembered,  was  not  formerly  liable  to  the 
payment  of  any  debts  which  were  not  secured  by  specialty  bind- 
ing the  heirs 5(5)  and  the  alteration,  which  in  this  respect  has  been 
made  in  the  law,  aiFects  only  such  real  estates  as  have  not  been 
charged  by  the  deceased  with  the  payment  of  his  debts.  The 
creditors  therefore  in  whose  favor  the  charge  is  made  acquire, 
as  before  the  alteration,  the  character  of  cestui  que  trusts;  and  in 
equity  they  will  not  be  allowed  to  lose  their  debts,  because  they 
do  not  go  to  law  to  enforce  payment  when  they  have  a  trustee  to 
pay  them.(<)  But  after  twenty  years  the  charge,  if  not  enforced, 
will  be  barred  like  any  other  charge.(M)  An  express  trust,  how- 
ever, is  proof  against  any  length  of  time.(i;)  And  as  personal 
estate  has  always  been  primarily  liable  to  the  payment  of  all 
debts,  a  trust  created  by  a  testator  for  the  payment  of  his  debts 
out  of  his  personal  estate  will  not  prevent  the  operation  of  the 
statute.  (2:) 

When  the  dividends  upon  any  stock  transferable  at  the  Bank 
of  England  have  not  been  claimed  for  ten  *years,  such  r* 07^-1 
stock,  together  with  the  unclaimed  dividends,  is  trans- 
ferred to  the  account  of  the  commissioners  for  the  reduction  of 
the  national  debt;(?/)  and  such  dividends,  together  with  all  the 
future  dividends  on  the  stock,  are  invested  by  the  commissioners 
in  the  purchase  of  like  stock,  so  as  to  accumulate. (^)  And  the 
governor  or  deputy  governor  of  the  bank  for  the  time  being 
may  order  the  transfer  of  such  stock  and  the  payment  of  the 
dividends  to  any  person,  showing,  to  his  satisfaction,  a  right 
thereto;  but  in  case  such  governor  or  deputy  governor  shall  not 
be  satisfied  of  the  justice  or  legality  of  the  claim,  an  order  for 
transfer  and  payment  may  be  obtained  from  the  Court  of  Chan- 
cery by  petition  in  a  summary  way,  stating  and  verifying  the 

{$)  See  Principles  of  the  Law  of  Real  Property,  57,  1st  ed.  ;  61,  2d  ed.  ;  64,  3d  &  4th 
eds.  ;  68,  5th  ed.  ;   72,  6th  ed.  ;  a7ite,  p.  101. 

(t)  Turn.  &  Russ.  309. 

(11)  Dundas  v.  Blake,  11  Ir.  Eq.  Rep.  138;  Sug.  Real  Prop.  Stat.  p.  107;  Jacquet  v. 
Jacquet,  27  Beav.  322;  Dickinson  v.  Teesdale,  31  Beav.  511. 

{v)   See  the  author's  Essay  on  Real  Assets,  p.  40. 

{x)   Scott  V.  Jones,  4  CI.  &  Fin.  382  ;  Freake  v.  Cranefeldt,  3  My.  &  Cr.  499. 

(y)   Stats.  56  Geo.  Ill,  c.  60  ;  8  &  9  Vict.  c.  62. 

(z)  Stat.  56  Geo.  Ill,  c.  60,  s.  4. 


518  OF   TITLE. 

claim. («)  But  no  sucli  transfer  of  stock  or  payment  of  dividends, 
exceeding  the  sum  of  20/.,  can  be  made  until  three  calendar 
months  after  the  application,  nor  until  notice  has  been  adver- 
tised in  one  or  more  newspapers  circulating  in  London  and  else- 
where, as  the  governor  and  company  of  the  bank  shall  think  fit; 
which  notice  must  state  the  name,  description  and  condition  of 
the  person  in  whose  name  the  unclaimed  stock  or  dividends 
stood  when  transferred  to  the  commissioners,  and  the  amount 
thereof,  and  the  name  of  the  claimant,  and  the  time  at  which 
the  transfer  or  payment  will  be  made  if  no  other  claimant  shall 
sooner  appear  and  make  out  his  claim.  And  when  the  stock  or 
dividends  are  directed  to  be  transferred  or  paid  by  any  order  of 
the  Court  of  Chancery,  the  notice  must  also  state  the  purport  or 
effect  of  such  order; (6)  and  au}^  person  may  at  any  time  before 
the  actual  retransfer  of  the  stock,  or  payment  of  the  dividends 
P^^^^-,  to  any  such  claimant,  apply  to  the  Court  of  *  Chancery 
L  -"  by  motion  or  petition  to  rescind,  alter  or  vary  any  order 
made  for  such  transfer  or  payment.(c) 

"When  a  chose  in  action,  whether  legal  or  equitable,  is  trans- 
ferred from  one  person  to  another,  notice  of  the  assignment 
should  be  given  by  the  transferree  to  the  j)erson  liable  to  the 
action  at  law  or  suit  in  equity,  the  right  to  bring  which  is  the 
subject  of  the  transfer.((/)  Thus  if  a  debt  be  assigned,  notice  of 
the  assignment  should  be  given  to  the  debtor.^     If  the  subject 

(a)  Stat.  56  Geo.  Ill,  c.  60,  s.  5  j  24  Vict.  c.  3,  s.  8  ;  Ex  parte  Ram,  3  My.  &  Craig.  25  ; 
Hunt  V.  Peacock,  6  Hare,  361. 

(b)  Stat.  8  &  9  Vict.  e.  62,  s.  2. 

(c)  Sect.  3. 

{d)  Dearie  v.  Hall,  Loveridge  v.  Cooper,  3  Russ.  1  ;   Bright's  Trusts,  21  Beav.  430. 


1  An  assignment  of  a  chose    in   action  is  debtor  should  have  notice   of  the  transfer  ; 

valid,  in  equity,  if  made  upon  a  good  con-  Wood  v.  Partridge,  11  Mass.  R.  491  ;  Foster 

sideration,   and  with  notice  to  the   debtor;  v.  Sinkler,  4  Id.  450;  Comstock  ^^  Farnum, 

Admr.  of  Sheftall  v.  Admr.  of  Clay,  Charlt.  2    Id.    97  ;     Davenport    v.    AVoodbridge,    8 

R.   230  ;  Anderson  et   al.   v.  Van   Allen,    12  Greenlf.  R.  18  ;  for,  as  was  said  in  the  latter 

Johns.  R.  343;  Briggs  v.   Dorr,   19   Id.  95  ;  case,    "although   upon  the  assignment,    the 

Van  Vechten  v.  Graves,  4  Id.  403  ;  Littlefield  original  creditor  ceases  to  be,  for  any  bene- 

V.    Story,    3   Id.    425  ;   Wardell  v.    Eden,    2  ficial  purpose,  the  owner  of  the  demand,  and 

.Johns.  Cas.  121  ;   Henry  v.  Milham,  1  Green's  cannot  receive   it,  or  any  part   of  it,  to  his 

R.  266  ;  Perkins  v.  Parker,  1  Mass.  R.  117  ;  own  use;   yet  if  the  debtor,  ignorant  of  such 

Corser  v.    Craig,    1    Wash.    C.    C.    R.    424  ;  assignment,  make  payments  to  him,  they  are 

Noyes  v.   Brown,   33    Vt.    R.   431  ;  but   the  to  be  allowed  in  his  favor.     And  this  qualifi- 


OF   TITLE.  519 

of  the  assignment  be  the  right  to  stock  standing  in  the  name 
of  a  trustee,  notice  of  the  assignment  should  be  given  to  such 
trustee.     Until  such  notice  be  given,  it  is  evident  that  the  debtor 
may  innocently  i3ay  the  debt,  or  the  trustee  transfer  the  stock  to 
the  transferror;  or  the  transferror  may  fraudulently  transfer  his 
right  over  again  to  a  third  person.     The  transferree,  therefore, 
until  he  has  given  notice  to  the  party  liable,  has  not  done  all 
that  lies  in  his  power  to  perfect  his  title.     The  chose  in  action 
still  remains  the  apparent  property  of  the  transferror,  and  in  the 
event  of  his  bankruptcy  will  pass  to  his  assignees  as  property  in 
his  order  and  disposition,  with  the  consent  of  the  true  owner 
thereof  ;(e)  and  even  the  assignees  themselves  will  not  be  safe 
unless  they  give  a  similar  notice.(/)     The  importance  of  giving 
notice  suggests  the  precaution  that  every  person  about  to  accept 
an  assignment  of  a  chose  in  action  should  inquire  of  the  person 
liable  to  the  action  or  suit,  whether  he  has  had  notice,  of  any 

(e)  Ex  parte  Munro,  Buck,  300  :  Williams  v.  Thorpe,  2  Sim.  257;  Thompson  v.  Spiers, 
13  Sim.  469  :   BartJett  v.  Bartlett,  1  De  Gex  &  Jones,  127  ;  see  a)ite,  p.  51. 
(/)  Re  Barr's  Trusts,  4  Kay  &  J.  219. 


cation  of  the  right  of  the  as.=ignee,  is  for  the  to  put  him  upon  inquiry,  he  acts  contrary  to 
equitable  protection  of  the  debtor.  But  if  good  faith,  and  on  his  peril  ;  Anderson  et  al. 
the  latter  has  notice  of  the  assignment,  what  v.  Van  Allen,  12  Johns.  R.  343;  Tritts, 
he  afterwards  pays  to  the  original  debtor,  he  Admr  ,  v.  Colwell'sAdmr.,  31  Pa.  St.  R.  228  ; 
pays  in  his  own  wrong  ;"  and  notwithstanding  as  was  said  in  the  case  of  Johnson  v.  Blood- 
such  payments,  he  will  still  be  liable  to  the  good,  1  Johns.  Gas.  52,  "  The  notice  by  which 
assignee  ;  Stevens  v.  Stevens,  1  Ash.  R.  190;  parties  are  affected,  is  either  express  or  im- 
Jones  V.  Whitter,  13  Mass.  R.  307  ;  Jenkins  plied  ;  under  the  head  of  implied  notice,  it 
V.  Brewster,  14  Id.  291  ;  Littlefield  v.  Story,  has  been  held  in  a  court  of  equity,  'that 
3  Johns.  R.  425;  Clark  v.  Rogers,  2  Greenlf.  whatever  is  sufficient  to  put  the  party  upon 
R.  143;  Swettf.  Green,  4  Id.  384;  Holland  inquiry,  is  good  notice.' "  But  between  the 
V.  Dale,  Minor's  R.  '265  ;  and  so  also,  if  parties  to  the  contract,  the  assignment  will 
after  an  assignment  with  notice,  the  original  be  good  without  notice,  either  express  or  im- 
ereditor  execute  a  release,  the  claim  is  not  plied;  Bishop  «.  Holcombe,  10  Conn.  R.  444. 
thereby  extingui.shed  ;  AVeish  v.  Manderville,  At  law,  where  an  assignment  of  a  chose  in 
1  Wheat.  R.  236,  S.  C,  5  Id.  277  ;  Cowan  u.  action  has  been  made,  the  claim  should  gen- 
Shields,  1  Overt.  R.  314;  Dunn  v.  Snell,  15  erally  be  sued  in  the  name  of  the  assignor; 
Mass.  R.  485;  Raymond «.  Squire,  11  Johns.  R.  Admr.  of  Sheftall  v.  Admr.  of  Clay,  Charlt. 
47  ;  Andrews  v.  Beecker,  1  Johns.  Gas.  411  ;  R.  230  ;  Boylston  v.  Greene,  8  Mass.  R.  465  ; 
Strong  V.  Strong,  2  Aik.  R.  373  ;  Eastman  but  where  the  party  who  is  bound,  has  recog- 
V.  Wright,  6  Pick.  R.  316  ;  Wheeler  v.  nized  the  transfer,  and  promised  to  pay  the 
Wheeler,  9  Gow.  R.  34  ;  new  creditor,  he  may  bring  suit  in  his  own 

Actual  notice,  however,  of  a  transfer,  is  not  name;  Mowry  v.  Todd,  12  Johns.  R.  281; 
necessary,  for  if  a  party  acts  in  the  face  of  Tiernan  et  al.  v.  .Jackson,  5  Pet.  R.  597  ;  De 
facts  and  circumstances  which  were  sufiScient    Barry  v.  Withers  et  al.,  44  Pa.  St.  11.  356. 


520  OF   TITLE. 

prior  assignment.  And  if  there  be  two  or  more  persons  liable, 
inquiry  should  be  made  of  every  one  of  them;  for  notice  by  a 
r*Q7Qn  prior  assignee  to  any  *one  of  them  would  be  equivalent 
*-  -'to  notice  to  all.(^)  It  is  also  advisable  that  a  written 
answer  should  be  obtained  to  every  such  inquiry,  in  order  that 
if  the  assignee  should  be  misled  by  a  false  answer,  he  may  be 
enabled  to  recover  damages  for  the  misrepresentation.  For  it 
has  been  doubted  whether  the  answer  to  such  an  inquiry  be  not 
a  representation  concerning  the  ability  of  the  intended  assignor 
within  the  meaning  of  Lord  Tenterden's  Act,  which  requires 
that  all  such  representations  be  made  in  writing  signed  by  the 
party  to  be  charged  therewith. (A)  The  inquiry,  however,  thus 
recommended  will  not  of  itself  strengthen  the  title  of  the  as- 
signee, further  than  by  assuring  him  that  no  previous  assign- 
ment has  been  made.  In  order  to  obtain  a  good  title,  he  must 
himself  give  notice  to  the  person  or  one  of  the  persons  liable  to 
the  debt  or  demand  assigned  to  him.  When  this  has  been  done 
his  title  will  be  secure,  and  will  prevail  over  that  of  any  un- 
known prior  assignee  who  may  have  omitted  to  give  such  no- 
tice.(f)  If  the  property  consist  of  money  or  stock  standing  in 
the  name  of  the  accountant-general  of  the  Court  of  Chancery, 
or  of  securities  in  his  possession,(Z^')  an  order  of  the  court  should 
be  obtained  restraining  transfer  or  payment  without  notice  to 
the  assignee.  This  order  is  called  a  stop  order,  and  will  have 
the  same  efl'ect  as  notice  of  assignment  given  to  any  private 
debtor.(^)  If  the  property  be  stock  standing  in  the  name  of  a 
trustee,  who  has  died  without  any  administration  having  been 
taken  out  to  his  effects,  a  distringas  obtained  by  the  assignee 
to  restrain  the  transfer  of  the  stock  will  confer  on  him  the 
r*^7Ql  ^^^^^^  priority  as  notice  to  the  trustee  would  have  *done 
•-  -'  had  he  been  living.(m)  When  the  property  consists  of 
a  policy  of  assurance,  or  of  shares  in  a  joint-stock   company, 

{g)  Smith  V.  Smith,  2  Cr.  &  M.  231  ;  Meux  v.  Bell,  1  Hare,  73,  87.  See  Browne  v. 
Savage,  4  Drew.  635,  640. 

(//)  Lyde  v.  Barnard,  1  Mee.  &  Wels.  101 ;  Swann  v.  Phillips,  8  Ad.  &  El.  457,  E.  C.  L. 
R.  vol.  35  ;  see  ante,  p.  78. 

{i)  Dearie  v.  Hall,  Loveridge  v.  Cooper,  1  Russ.  1. 

(/.)  Williams  v.  Symonds,  9  Beav.  523. 

(/)   Greenings.  Beckford,  5  Sim.  195;   Swayne  v.  Swayne,  11  Beav.  463. 

(»i)  Etty  V.  Bridges,  2  Younge  &  Coll.  N.  0.  486 ;  see  ante,  p.  187. 


OF   TITLE.  521 

notice  of  the  transfer  should  be  given  to  the  office  of  the  com- 
pany.(r?)^ 

The  title  to  personal  property  sometimes  depends  upon  deeds, 
wills  or  other  documents  of  title  of  the  like  nature,  and  cannot 
be  shown  without  their  production.  Thus  a  reversionary  in- 
terest in  money  in  the  funds,  settled  by  deed  or  will,  may  be 
mortgaged  and  sold  again  and  again  before  it  becomes  an  in- 
terest in  possession.  In  these  cases  the  purchaser  is  entitled  to 
an  abstract  of  the  deeds,  wills,  &c.,  which  compose  the  title,  in 
the  same  manner  as  if  the  subject  of  the  contract  had  been  real 
estate;  and  the  original  deeds  and  the  probates  or  office  copies  of 
the  wills,  must  also  in  like  manner  be  produced  for  the  verifica- 
tion of  the  abstract,  (o)  The  purchaser  is  also  entitled  either  to 
the  possession  of  the  deeds,  or,  if  this  cannot  be  had,  to  attested 
copies  of  them,  and  a  covenant  for  their  production,  at  the  ex- 
pense of  the  vendor. (/»)  And  when  an  assignment  of  any  kind 
of  personal  property  is  made  by  deed,  it  is  usual  for  the  assignor 
to  enter  into  covenants  for  the  title  similar  to  those  entered  into 
under  the  like  circumstances  by  the  grantor  of  real  estate.(5') 

The  vendor  of  shares  in  a  joint-stock  company  is  bound 
merely  to  give  such  e"\dderice  of  the  constitution  *of  the  r^qoon 
company,  as  to  show  that  the  proposed  transfer  will  give  '-  ^ 
a  valid  title  to  the  shares  sold.(r) 

A  recent  act  of  Parliament  provides  that  any  person  shall 
have  power  to  assign  personal  property,  now  by  law  assignable, 

(w)  Williams  v.  Thorpe,  2  Sim.  257;  Thompson  v.  Spiers,  13  Sim.  469;  West  v.  Reid,  2 
Hare,  249  ;  Martin  v.  Sedgwick,  9  Beav.  333  ;  Powles  v.  Page,  3  C.  B.  16,  E.  C.  L.  R.  vol.  54. 

(o)  See  Principles  of  the  Law  of  Real  Property,  349,  1st  ed. ;  351,  2d  ed.  ;  364,  3d  ed.  ; 
370,  4th  ed.  ;  381,  5th  ed.  ;   404,  6th  ed.  ;  Hohson  v.  Bell,  2  Beav.  17. 

{p)  Ibid.  354,  356,  1st  ed.  ;  356,  358,  2d  ed.  ;  369,  372,  3d  ed.  ;  375,  378,  4th  ed. ;  389, 
5th  ed.  ;  412,  6th  ed. 

(q)  Ibid.  348,  1st  ed.  ;  349,  2d  ed.  ;  362,  3d  ed.  ;  368,  4th  ed.  ;  379,  5th  ed.  ;  402,  6th  ed. 

(r)   Curling  v.  Flight,  2  Phil.  613. 


1  Almost   every  policy  of  insurance  con-  are  approved  by  insurance  companies,  after 

tains  a  stipulation,  that  in  case  of  an  assign-  the  time  limited  for  notice  has   expired,  in 

ment,  it  shall  be  approved  by  the  company,  cases  which  are  free  from  suspicion  of  fraud, 

■within   a  certain   specified  time,    after   such  or  unfair  dealing ;  and,   when  so  approved, 

transfer ;    and  that,   in   default   of  such  ap-  the  companies  waive  all  benefit,  which  they 

proval,  the  policy  shall,   ipso  facto,   become  might  have   taken,  from  the  want  of  notice 

null  and  void  ;  but  in  practice,  assignments  within  the  time  required  by  the  policy. 


522  OF   TITLE. 

directly  to  himself  and  another  person  or  other  persons  or  cor- 
poration, by  the  like  means  as  he  might  assign  the  same  to 
another. (s)  Before  this  act  an  assignment  by  A.  to  himself  and 
B.  vested  the  whole  of  the  property  in  B.  The  same  act  renders 
criminally  punishable  the  concealment,  M^th  intent  to  defraud,  of 
any  deed  or  instrument  material  to  a  title  or  of  any  incumbrance, 
or  the  falsification  of  any  pedigree  on  which  a  title  depends.(^) 

From  what  has  been  said  it  will  appear  that  the  title  to  per- 
sonal property  is  far  more  simple  than  that  to  real  estate.  And 
amongst  the  plans  which  have  appeared  for  the  amendment  of 
the  law  has  been  one  for  adapting  the  machinery  of  the  funds  to 
the  transfer  of  landed  property.  Upon  consideration,  however, 
it  will  perhaps  appear  that  the  greater  complexity  of  the  title  to 
lands  arises  partly  from  the  nature  of  the  property,  and  partly 
from  the  more  full  power  of  disposition  to  which  lands  are  sub- 
ject. Lands,  unlike  stock,  may  be  converted  from  arable  to 
pasture,  may  be  cut  up  into  roads,  canals,  or  railways,  may  be 
sold  by  the  foot  for  building  purposes,  may  be  let  upon  lease  for 
terms  absolute  or  determinable,  may  be  held  for  life,  or  in  tail, 
as  well  as  in  fee,  and  may  be  disposed  of  by  contingent  remain- 
ders, shifting  uses,  and  executory  devises,  without  the  interven- 
tion of  any  trustees.  Personal  property,  on  the  contrary,  cannot 
be  settled  without  the  intervention  of  trustees,  in  whom  a  great 
degree  of  personal  confidence  must  *necessarily  be  placed; 
■-  -'  but  when  so  settled,  the  title  to  it  is  sometimes  as  long 
and  intricate  as  that  to  real  estate.  If  the  nature  of  lands  could 
be  altered,  or  if  landowners  were  willing,  in  order  to  save  them- 
selves expense,  to  give  up  some  of  their  powers  of  disposition, 
the  title  to  real  estate  might  doubtless  be  rendered  as  simple  as 
that  to  personal  property.  To  the  latter  alternative,  however, 
few,  if  any,  would  be  inclined  to  submit.  Whilst,  therefore, 
much  might  be  done  to  simplify  and  improve  our  laws  of  prop- 
erty by  an  assimilation  of  the  rules  of  real  and  personal  estate, 
where  the  history  of  each  forms  the  only  ground  of  variety,  care 
should  be  taken  to  preserve  untouched  such  distinctions  as  are 
founded  on  the  broad  basis  of  practical  difiference. 

(s)   Stat.  22  &  23  Viet.  c.  35,  s.  21. 

(0    Sect.  24,  extended  by  stat.  23  &  24  Vict.  c.  38,  s.  8. 


^APPENDIX  (A).  [*3«3] 

(Referred  to,  p.  221.) 


FORM   OF  LETTERS-PATENT. 

Victoria  by  the  grace  of  God  of  the  United  Kingdom  of  Great  Britain 
and  Ireland  Queen  Defender  of  the  Faith  to  all  to  whom  these  presents  shall 
come  greeting  Whereas  A.  B.  of hath  by  his  petition  humbly  rep- 
resented unto  us  that  he  is  in  possession  of  an  invention  for which 

the  petitioner  conceives  will  be  of  great  public  utility.  That  he  is  the  true 
and  first  inventor  thereof  and  the  same  is  not  in  use  by  any  other  person  or 
persons  to  the  best  of  his  knowledge  and  belief  the  petitioner  therefore  most 
humbly  prayed  that  we  would  be  graciously  pleased  to  grant  unto  him  his  ex- 
ecutors administrators  and  assigns  our  royal  letters-patent  for  the  sole  use 
benefit  and  advantage  of  his  said  invention  within  our  United  Kingdom  of 
Great  Britain  and  Ireland  the  Channel  Islands  and  Isle  of  Man  [Colonies 
TO  BE  mentioned  IF  any]  for  the  term  of  fourteen  years  pursuant  to  the 
statutes  in  that  case  made  and  provided  [And  whereas  the  said  A.  B.  hath 
particularly  described  and  ascertained  the  nature  of  the  said  invention  and  in 
what  manner  the  same  is  to  be  performed  by  an  instrument  in  writing  under 

his  hand  and  seal  and  has  caused  the  same  to  be  duly  filed  in :] 

And  we  being  willing  to  give  encouragement  to  all  arts  and  inventions  which 
may  be  for  the  public  good  are  graciously  pleased  to  condescend  to  the  pe- 
titioner's request  Know  ye  therefore  that  we  of  our  especial  grace  certain 
knowledge  and  mere  motion  have  given  and  granted  and  by  these  presents  for 
us  our  heirs  and  successors  do  give  and  grant  unto  the  said  A.  B.  his  execu- 
tors administrators  and  assigns  our  especial  license  full  power  sole  privilege 
and  authority  that  he  the  said  A.  B.  his  executors  administrators  and  assigns 
and  every  of  them  by  himself  *and  themselves  or  by  his  or  their  p^oo^-i 
deputy  or  deputies  servants  or  agents  or  such  others  as  he  the  said 
A.  B.  his  executors  administrators  or  assigns  shall  at  any  time  agree  with  and 
no  others  from  time  to  time  and  at  all  times  hereafter  during  the  term  of 
years  herein  expressed  shall  and  lawfully  may  make  use  exercise  and  vend  his 
said  invention  within  our  United  Kingdom  of  Great  Britain  and  Ireland  the 
Channel  Islands  and  Isle  of  Man(a)  in  such  a  manner  as  to  him  'the  said 

{a)  The  colonies  should  here  be  mentioned,  if  any,  though  it  is  not  so  stated  in  the 
printed  form  annexed  to  the  act. 


524  APPENDIX. 

A.  B.  his  executors  administrators  and  assigns  or  any  of  tbem  shall  in  his  or 
their  discretion  seem  meet  and  that  he  the  said  A.  B.  his  executors  adminis- 
trators and  assigns  shall  and  lawfully  may  have  and  enjoy  the  whole  profit 
benefit  commodity  and  advantage  from  time  to  time  coming  growing  accruing 
and  arising  by  reason  of  the  said  invention  for  and  during  the  term  of  years 
herein  mentioned  to  have  hold  exercise  and  enjoy  the  said  licenses  powers 
privileges  and  advantages  hereinbefore  granted  or  mentioned  to  be  granted 
unto  the  said  A.  B.  his  executors  administrators  and  assigns  for  and  during 

and  unto  the  full  end  and  term  of  fourteen  years  from  the day  of  

A.D. next  and  immediately  ensuing  according  to  the  statute  in  such  case 

made  and  provided  And  to  the  end  that  he  the  said  A.  B.  his  executors  ad- 
ministrators and  assigns  and  every  of  them  may  have  and  enjoy  the  full  benefit 
and  the  sole  use  and  exercise  of  the  said  invention  according  to  our  gracious 
intention  hereinbefore  declared  We  do  by  these  presents  for  us  our  heirs 
and  successors  require  and  strictly  command  all  and  every  person  and  persons 
bodies  politic  and  corporate  and  all  other  our  subjects  whatsoever  of  what 
estate  quality  degree  name  or  condition  soever  they  be  within  our  United 
Kingdom  of  Great  Britain  and  Ireland  the  Channel  Islands  and  Isle  of  Man 
[Colonies  to  be  mentioned  if  any]  that  neither  they  nor  any  of  them  at 
any  time  during  the  continuance  of  the  said  term  of  fourteen  years  hereby 
granted  either  directly  or  indirectly  do  make  use  or  put  in  practice  the  said 
invention  or  any  part  of  the  same  so  attained  unto  by  the  said  A.  B.  as  afore- 
said nor  in  anywise  counterfeit  imitate  or  resemble  the  same  nor  shall  make 
or  cause  to  be  made  any  addition  *thereunto  or  subtraction  from  the 
'-  same  whereby  to  pretend  himself  or  themselves  the  inventor  or  in- 

ventors devisor  or  devisors  thereof  without  the  consent  license  or  agreement 
of  the  said  A.  B.  his  executors  administrators  or  assigns  in  writing  under  his 
or  their  hands  and  seals  first  had  and  obtained  in  that  behalf  upon  such  pains 
and  penalties  as  can  or  may  be  justly  inflicted  on  such  offenders  for  their  con- 
tempt of  this  our  royal  command  and  further  to  be  answerable  to  the  said 
A.  B.  his  executors  administrators  and  assigns  according  to  law  for  his  and 
their  damages  thereby  occasioned  And  moreover  we  do  by  these  presents  for 
us  our  heirs  and  successors  will  and  command  all  and  singular  the  justices  of 
the  peace  mayors  sheriflFs  bailiffs  constables  headboroughs  and  all  other  officers 
and  ministers  whatsoever  of  us  our  heirs  and  successors  for  the  time  being 
that  they  or  any  of  them  do  not  nor  shall  at  any  time  during  the  said  term 
hereby  granted  in  anywise  molest  trouble  or  hinder  the  said  A.  B.  his  execu- 
tors administrators  or  assigns  or  any  of  them  or  his  or  their  deputies  servants 
or  agents  in  or  about  the  due  and  lawful  use  or  exercise  of  the  aforesaid  in- 
vention or  anything  relating  thereto  Provided  always  and  these  our  let- 
ters-patent are  and  shall  be  upon  this  condition  that  if  at  any  time  during  the 
said  term  hereby  granted  it  shall  be  made  appear  to  us  our  heirs  or  successors 


APPENDIX.  525 

or  any  six  or  luore  of  our  or  their  Privy  Council  that  this  our  grant  is  con- 
trary to  law  or  prejudicial  or  inconvenient  to  our  subjects  in  general  or  that 
the  said  invention  is  not  a  new  invention  as  to  the  public  use  and  exercise 
thereof  or  that  the  said  A.  B.  is  not  the  true  and  first  inventor  thereof  within 
this  realm  as  aforesaid  these  our  letters-patent  shall  forthwith  cease  determine 
and  be  utterly  void  to  all  intents  and  purposes  anything  herein  contained  to 
the  contrary  thereof  in  anywise  notwithstanding  Provided  also  and  these 
our  letters-patent  or  anything  herein  contained  shall  not  extend  or  be  con- 
strued to  extend  to  give  privilege  unto  the  said  A.  B.  his  executors  adminis- 
trators or  assigns  or  any  of  them  to  use  or  imitate  any  invention  or  work  what- 
soever which  hath  heretofore  been  found  out  or  invented  by  any  other  of  our 
subjects  whatsoever  and  publicly  used  or  exercised  unto  whom  our  like  letters- 
patent  or  privileges  have  been  already  granted  for  the  sole  use  exercise  and 
benefit  *thereof  it  being  our  will  and  pleasure  that  the  said  A.  B.  his  p^oo^n 
executors  administrators  and  assigns  and  all  and  every  other  person 
and  persons  to  whom  like  letters- patent  or  privileges  have  been  already  granted 
as  aforesaid  shall  distinctly  use  and  practise  their  several  inventions  by  them 
invented  and  found  out  according  to  the  true  intent  and  meaning  of  the  same 
respective  letters-patent  and  of  these  presents  Provided  likewise  never- 
theless and  these  our  letters-patent  are  upon  this  express  condition  [that  if  the 
said  A.  B.  shall  not  particularly  describe  and  ascertain  the  nature  of  his  said 
invention  and  in  what  manner  the  same  is  to  be  performed  by  an  instrument 

in  writing  under  his  hand  and  seal  and  cause  the  same  to  be  filed  in 

within calendar  months  next  and  immediately  after  the  date  of  these 

our  letters-patent]  [and  also  if  the  said  instrument  in  writing  filed  as  afore- 
said does  not  particularly  describe  and  ascertain  the  nature  of  the  said  inven- 
tion and  in  what  manner  the  same  is  to  be  performed]  and  also  if  the  said 
A.  B.  his  executors  administrators  or  assigns  shall  not  pay  or  cause  to  be.  paid 
at  the  office  of  our  Commissioners  of  Patents  for  Inventions  the  sums  following 

that  is  to  say  the  sum  of pounds  on  or  before day  of  

A.D. and  the  stamp  duty  payable  in  respect  of  the  certificate  of  such 

payment  and  the  sum  of pounds  on  or  before  the day  of 

A.D.  and  the  stamp  duty  payable  in  respect  of  the  certificate  of  such 

payment(6)  And  also  if  the  said  A.  B.  his  executors  administrators  or  as- 
signs shall  not  supply  or  cause  to  be  supplied  for  our  service  all  such  articles 
of  the  said  invention  as  he  or  they  shall  be  required  to  supply  by  the  officers 
or  commissioners  administering  the  department  of  our  service  for  the  use  of 
which  the  same  shall  be  required  in  such  manner  at  such  times  and  at  and 
upon  such  reasonable  prices  and  terms  as  shall  be  settled  for  that  purpose  by 
the  said  officers  or  commissioners  requiring  the  same  that  then  and  in  any  of 

(b)  By  Stat.  16  &  17  Vict.  c.  5,  no  fees  are  now  payable,  but  stamp  duties  only.      See 
ante,  p.  215. 


526  APPENDIX. 

the  said  cases  these  our  letters-patent  and  all  liberties  and  advantages  what- 
soever hereby  granted  shall  utterly  cease  determine  and  become  void  anything 
hereinbefore  contained  to  the  contrary  thereof  in  anywise  *nothwith- 
^  standing    Provided  that  nothing  herein  contained  shall  prevent 

the  granting  of  licenses  in  such  manner  and  for  such  consideration  as  they 
may  by  law  be  granted  And  lastly  we  do  by  these  presents  for  us  our  heirs 
and  successors  grant  unto  the  said  A.  B.  his  executors  administrators  and 
assigns  that  these  our  letters-patent  on  the  filing  thereof  shall  be  in  and  by 
all  things  good  firm  valid  sufficient  and  effectual  in  the  law  according  to  the 
true  intent  and  meaning  thereof  and  shall  be  taken  construed  and  adjudged 
in  the  most  favorable  and  beneficial  sense  for  the  best  advantage  of  the  said 
A.  B.  his  executors  administrators  and  assigns  as  well  in  all  our  Courts  of 
Record  as  elsewhere  and  by  all  and  singular  the  officers  and  ministers  whatso- 
ever of  us  our  heirs  and  successors  in  our  United  Kingdom  of  Great  Britain 
and  Ireland  the  Channel  Islands  and  the  Isle  of  Man  [Colonies  to  be  men- 
tioned IP  any]  and  amongst  all  and  every  the  subjects  of  us  our  heirs  and 
successors  whatsoever  and  wheresoever  notwithstanding  the  not  full  and  cer- 
tain describing  the  nature  or  quality  of  the  said  invention  or  of  the  materials 
thereunto  conducing  and  belonging.    In  witness  whereof  we  have  caused  these 

our  letters  to  be  made  patent  this day  of A.  D.  and  to  be 

sealed  and  bear  date  as  of  the  said day  of A.  D. in  the 

year  of  our  reign. 


*APPENDIX  (B).  [*388] 

(Referred  to,  pp.  240,  262,  265,  355,  357.) 


Marriage  Settlement  of  a  Share  of  a  Testator's  Residuary  Per- 
sonal Estate  and  of  Money  in  the  Funds  upon  the  usual 
Trusts. 

This  Indenture  made  the day  of  1860  Between  Charles 

Catchpole  of  King  Street  in  the  city  of  London  gentleman  of  the  first  part 
Grace  Gurney  of  Ilarley  Street  in  the  county  of  Middlesex  spinster  of  the 
second  part  and  Henry  Hunter  of  Brixton  in  the  county  of  Surrey  Esquire 
John  James  of  Lincoln's  Inn  in  the- county  of  Middlesex  Esquire  and  Leon- 
ard Lambert  of  Brighton  in  the  county  of  Sussex  Esquire  of  the  third  part 
Whereas  a  marriage  has  been  agreed  upon  and  is  intended  to  be  shortly 
solemnized  between  the  said  Charles  Catchpole  and  Grace  Gurney  And 
WHEREAS  under  and  by  virtue  of  the  last  will  and  testament  of  John  Gurney 
late  of  Harley  Street  aforesaid  Esquire  deceased  which  said  will  bears  date  on 
or  aJjout  the  ninth  day  of  January  1840  and  was  proved  in  the  Prerogative 
Court  of  the  Archbishop  of  Canterbury(a)  on  or  about  the  twelfth  day  of 
March  1840  the  said  Grace  Gurney  is  now  entitled  to  one  equal  undivided 
fourth  part  or  share  or  some  other  part  or  share  of  the  residuary  personal  es- 
tate of  the  said  testator  or  the  stocks  funds  or  securities  in  or  upon  which  the 
same  is  or  may  be  invested  And  whereas  the  said  Grace  Gurney  is  possessed 
of  the  sum  of  £5000  £3  per  cent,  consolidated  bank  annuities  which  said 
sum  was  lately  standing  in  her  own  name  in  the  books  of  the  governor  and 
company  of  the  Bank  of  England  And  whereas  upon  the  treaty  for  the  said 
intended  marriage  it  was  agreed  that  the  said  Grace  Gurney  should  assign  the 
said  one  equal  undivided  fourth  part  or  *share  or  other  part  or  share  r;^oQQ-| 
to  which  she  is  entitled  as  aforesaid  of  and  in  the  residuary  personal 
estate  of  her  said  late  father  unto  the  said  Henry  Hunter  John  James  and 
Leonard  Lambert  their  executors  administrators  and  assigns  upon  and  for  the 
trusts  intents  and  purposes  hereinafter  expressed  and  declared  of  and  con- 
cerning the  same  And  it  was  also  agreed  that  the  said  Grace  Gurney  should 
transfer  the  said  sum  of  £5000  £3  per  cent,  consolidated  bank  annuities  of 
which  she  is  possessed  as  aforesaid  into  the  names  of  the  said  Henry  Hunter 

{a)  See  atite,  p.  306. 


528  APPENDIX. 

John  James  and  Leonard  Lambert  to  be  held  by  them  upon  and  for  the  trusts 
intents  and  purposes  hereinafter  expressed  and  declared  of  and  concerning 
the  same  And  whereas  the  said  sum  of  £5000  £3  per  cent,  consolidated 
bank  annuities  hath  been  accordingly  transferred  by  the  said  Grace  Gurney 
out  of  her  name  into  the  names  of  the  said  Henry  Hunter  John  James  and 
Leonard  Lambert  and  the  same  is  now  standing  in  their  names  in  the  books 
of  the  governor  and  company  of  the  Bunk  of  England  as  they  the  said  Henry 
Hunter  John  James  and  Leonard  Lambert  do  hereby  admit  and  acknowledge 
Now  THIS  Indenture  witnesseth  that  in  pursuance  of  the  said  agreement 
in  this  behalf  and  in  consideration  of  the  said  intended  marriage  she  the  said 
Grace  Gurney  with  the  consent  and  approbation  of  the  said  Charles  Catchpole 
testified  by  his  being  a  party  to  and  executing  these  presents  Hath  granted 
bargained  sold  assigned  and  transferred  and  by  these  presents  Doth  grant 
bargain  sell  assign  and  transfer  unto  the  said  Henry  Hunter  John  James  and 
Leonard  Lambert  their  executors  administrators  and  assigns  All  that  the' one 
equal  undivided  fourth  part  or  share  or  other  part  or  share  of  her  the  said 
Grace  Gurney  under  the  hereinbefore  mentioned  will  of  her  said  late  father 
John  Gurney  of  and  in  the  residuary  personal  estate  of  her  said  late  father  and  of 
and  in  the  stocks  funds  and  securities  in  or  upon  which  the  same  now  is  or 
shall  or  may  at  any  time  or  times  hereafter  be  invested  and  of  and  in  the  divi- 
dends interest  and  annual  produce  thereof  And  all  the  right  title  claim  and 
demand  whatsoever  at  law  and  in  equity  of  her  the  said  Grace  Gurney  in  and 
to  the  said  one  equal  undivided  fourth  part  or  share  or  other  part  or  share 
^  „-  hereby  assigned  To  have  hold  receive  and  take  the  said  .*one 
L  -^  equal  undivided  fourth  part  or  share  or  other  part  or  share  intended 
to  be  hereby  assigned  of  and  in  the  residuary  personal  estate  of  the  said  John 
Gurney  and  the  investments  and  income  thereof  unto  the  said  Henry  Hunter 
John  James  and  Leonard  Lambert  their  executors  administrators  and  assigns 
In  trust  for  the  said  Grace  Gurney  her  executors  administrators  and  as- 
signs until  the  solemnization  of  the  said  intended  marriage  and  from  and 
immediately  after  the  solemnization  thereof  Upon  and  for  the  trusts  intents 
and  purposes  and  with  under  and  subject  to  the  powers  provisos  agreements 
and  declarations  hereinafter  expressed  and  declared  of  and  concerning  the 
same  And  the  said  Charles  Catchpole  and  Grace  Gurney  do  and  each  of 
them  doth  hereby  irrevocably  nominate  and  appoint  the  said  Henry  Hunter 
John  James  and  Leonard  Lambert  and  the  survivors  and  survivor  of  them  his 
executors  administrators  and  assigns  to  be  the  true  and  lawful  attorneys  and 
attorney  of  them  the  said  Charles  Catchpole  and  Grace  Gurney  and  each  of 
them(i)  in  their  his  or  her  names  or  name  to  ask  recover  and  receive  from  the 
executors  of  the  will  of  the  said  John  Gurney  and  all  and  every  persons  and 

(i)  This  power  of  attorney  is  not  absolutely  necessary,  as  the  choses  in  action  which  are 
assigned  are  equitable  only  ;  see  ante,  p.  112. 


APPENDIX.  529 

person  liable  to  pay  or  transfer  the  same  the  said  one  equal  undivided  fourth  part 
or  share  hereby  assigned  and  to  give  eifectual  discharges  for  the  same  and  on 
non-payment  or  non-transfer  thereof  or  of  any  part  thereof  to  commence  carry 
on  and  prosecute  any  action  or  actions  suit  or  suits  or  other  proceedings  whatso- 
ever for  obtaining  payment  or  transfer  thereof  And  also  for  all  or  any  of  the 
said  purposes  from  time  to  time  to  substitute  or  appoint  any  attorney  or  attorneys 
under  them  or  him  And  generally  to  do  and  execute  all  such  other  matters 
and  things  in  the  premises  as  shall  be  necessary  they  the  said  Charles  Catch- 
pole  and  Grace  Gurney  hereby  agreeing  to  allow  and  confirm  whatsoever  the 
said  Henry  Hunter  John  James  and  Leonard  Lambert  or  the  survivors  or 
survivor  of  them  his  executors  administrators  or  assigns  shall  lawfully  do  or 
cause  to  be  done  in  the  premises  by  virtue  hereof  And  it  is  hereby  agreed 
and  declared  by  and  between  the  said  parties  hereto  that  they  the  said  Henry 
Hunter  John  James  and  Leonard  Lambert  their  executors  *adminis- 
trators  and  assigns  shall  stand  possessed  of  and  interested  in  the  said  '-  ■' 
sum  of  £5000  £3  per  cent,  consolidated  bank  annuities  so  transferred  into  their 
names  as  aforesaid  In  trust  for  the  said  Grace  Gurney  her  executors  admin- 
istrators and  assigns  until  the  solemnization  of  the  said  intended  marriage 
And  from  and  immediately  after  the  solemnization  thereof  Upon  and  for  the 
trusts  intents  and  purposes  and  with  under  and  subject  to  the  powers  provisos 
agreements  and  declarations  hereinafter  expressed  and  contained  of  and  con- 
cerning the  same  And  it  is  hereby  agreed  and  declared  by  and  between  the 
said  parties  hereto  that  from  and  after  the  solemnization  of  the  said  intended 
marriage  the  said  Henry  Hunter  John  James  and  Leonard  Lambert  their 
executors  administrators  and  assigns  shall  stand  possessed  of  and  interested  in 
the  said  one  equal  fourth  part  or  share  or  other  part  or  share  hereinbefore  as- 
signed of  and  in  the  residuary  personal  estate  of  the  said  John  Gurney  and 
the  investments  thereof  and  the  said  sum  of  £5000  £3  per  cent,  consolidated 
bank  annuities  Upon  Trust  that  the  said  trustees  or  the  trustees  or  trustee 
for  the  time  being  of  these  presents  do  and  shall  either  continue  the  same  re- 
spectively in  their  respective  actual  estates  of  investment  or  do  and  shall  lay 
out  and  invest  the  same  in  any  of  the  parliamentary  stocks  or  public  funds 
of  Great  Britain  or  at  interest  upon  government  or  real  securities  in  England 
or  Wales  but  not  in  stock  of  the  Bank  of  England  or  Ireland  or  in  East 
India  stock  or  on  real  securities  in  Ireland(c)  and  do  and  shall  from  time  to 
time  alter  and  vary  the  said  stocks  funds  and  securities  for  or  into  others  of 
a  like  nature  as  often  as  the  said  trustees  or  trustee  shall  think  fit  Provided 
that  every  such  investment  alteration  and  variation  be  made  with  the  consent  of 
the  said  Charles  Catchpole  and  Grace  Gurney  during  their  joint  lives  and 
after  the  decease  of  either  of  them  with  the  consent  of  the  survivor  of  them(c^) 
and  after  the  decease  of  such  survivor  at  the  discretion  of  the  said  trustees  or 


(c)   See  ante,  pp.  258,  260.  (d)  See  a7ite,  p.  261. 

34 


530  APPENDIX. 

trustee  for  the  time  being  of  these  presents     And  it  is  hereby  agreed  and 
declared  by  and  between  the  said  parties  hereto  that  after  the  solemnization 
of  the  said  intended  marriage  the  said  trustees  or  *trustee  for  the  time 
'-  being  of  these  presents  shall  stand  possessed  of  and  interested  in  the 

said  share  of  the  residuary  personal  estate  of  the  said  John  Gurney  and  the 
investments  thereof  and  the  said  sum  of  £5000  £3  per  cent,  consolidated 
bank  annuities  and  the  stocks  funds  and  securities  in  or  upon  which  the  same 
may  be  invested  and  the  dividends  interest  and  annual  produce  thereof  Upon 
and  for  the  trusts  intents  and  purposes  and  under  and  subject  to  the  powers 
provisos  agreements  and  declarations  hereinafter  expressed  and  declared 
of  and  concerning  the  same  that  is  to  say  Upon  trust  that  they  the  said 
trustees  or  trustee  for  the  time  being  of  these  presents  do  and  shall  during 
the  life  of  the  said  Grace  Gurney  pay  the  interest  dividends  and  annual  pro- 
duce thereof  unto  such  person  or  persons  as  the  said  Grace  Gurney  shall  from 
time  to  time  notwithstanding  her  said  intended  or  any  future  coverture  ap- 
point by  any  writing  under  her  hand  but  not  by  any  mode  of  anticipation  and 
in  default  of  such  appointment  into  her  own  hands  for  her  sole  and  separate 
use(c)  exclusive  of  the  said  Charles  Catchpole  and  of  any  future  husband  but 
so  that  she  shall  not  dispose  thereof  in  any  mode  of  anticipation  And  the 
receipts  in  writing  of  the  said  Grace  Gurney  or  of  such  person  or  persons  as  she 
shall  appoint  to  receive  the  said  dividends  interest  and  annual  produce  in 
manner  aforesaid  but  not  in  any  mode  of  anticipation  shall  notwithstanding 
her  said  intended  or  any  future  coverture  be  effectual  discharges  for  the  same 
And  from  and  immediately  after  the  decease  of  the  said  Grace  Gurney  Upon 
TRUST  that  the  said  trustees  or  trustee  for  the  time  being  of  these  presents 
do  and  shall  pay  the  dividends  interest  and  annual  produce  of  the  said  trust 
moneys  stocks  funds  and  securities  unto  or  permit  the  same  to  be  received  by 
the  said  Charles  Catchpole  and  his  assigns  for  and  during  the  term  of  his 
natural  life  And  from  and  immediately  after  the  decease  of  the  survivor  of 
them  the  said  Charles  Catchpole  and  Grace  Gurney  the  said  trustees  or  trustee 
for  the  time  being  of  these  presents  shall  stand  and  be  possessed  of  and  inter- 
ested in  the  said  trust  moneys  stocks  funds  and  securities  and  the  dividends 
interest  and  annual  produce  thereof  In  trust  for  all  and  *every  or 
*-  such  one  or  more  exclusively  of  the  others  or  other  of  the  children 

or  child  of  the  said  intended  marriage  with  such  provision  for  their  respective 
maintenance  and  if  more  than  one  in  such  shares  and  proportions  and  sub- 
ject to  such  limitations  and  conditions  over  in  favor  of  any  others  or  other 
of  the  said  children  and  in  such  manner(/)  as  the  said  Charles  Catchpole 
and  Grace  Gurney  by  any  deed  or  deeds  instrument  or  instruments  in  writing 
with  or  without  power  of  revocation  and  new  appointment  to  be  by  them 
sealed  and  delivered  in  the  presence  of  and  to  be  attested  by  two  or  more 

(e)  See  a7ite,  p.  355.  (/)  See  a?ite,  pp.  248,  249. 


APPENDIX.  531 

credible  witnesses  shall  jointly  direct  or  appoint  And  in  default  of  such  joint 
direction  or  appointment  and  so  far  as  any  such  joint  direction  or  appoint- 
ment if  incomplete  shall  not  extend  as  the  survivor  of  them  the  said  Charles 
Catchpole  and  Grace  Gurney  by  any  deed  or  deeds  instrument  or  instruments 
in  writing  with  or  without  power  of  revocation  and  new  appointment  to  be  by 
him  or  her  respectively  sealed  and  delivered  in  the  presence  of  and  to  be  at- 
tested by  two  or  more  credible  witnesses  or  by  his  or  her  last  will  or  any  codicil 
or  testamentary  writing  to  be  by  him  or  her  respectively  duly  executed  (and  as 
to  the  said  Grace  Gurney  notwithstanding  any  future  coverture)  shall  direct 
or  appoint     And  in  default  of  such    direction  or  appointment  and  so  far 
as  any  such   direction  or  appointment  if  incomplete  shall  not  extend  In 
TRUST  for  all  and  every  the  children  or  child  of  the  said  intended  marriage 
^ho  being  a  son  or  sons  shall  attain  the  age  of  twenty-one  years  or  being  a 
daughter  or  daughters  shall  attain  that  age  or  marry  under  that  age  with 
the  consent  of  her  or  their  parent  or  parents  guardian  or  guardians  for  the 
time  being  and  to  be  divided  between  or  amongst  the  said  children  if  more 
than  one  in  equal  shares  as  tenants  in  common  and  if  there  shall  be  but  one 
such  child  who  being  a  son  shall  live  to  attain  the  age  of  twenty-one  years 
or  being  a  daughter  shall  live  to  attain  that  age  or  marry  under  that  age 
with  such  consent  as  aforesaid  then  the  whole  shall  be  in  trust  for  that 
one  or  only  child    But  no  child  taking  any  part  of  the  said  trust  moneys 
stocks  funds  and  securities  under  any  appointment  to  be  made  in  exercise  of 
*any  of  the  aforesaid  powers  shall  be  entitled  to  any  share  of  the  un-  p^^qn^-i 
appointed  part  of  the  said  trust  moneys  stocks  funds  and  securities  '- 
without  bringing  his  or  her  appointed  share  into  hotchpot  and  accounting  for 
the  same  accordingly(^)     And  if  there  shall  be  no  child  or  children  of  the 
said  intended  marriage  who  shall  become  entitled  to  the  said  trust  moneys 
stocks  funds  and  securities  under  the  trusts  hereinbefore  declared  then  the 
said  trustees  or  trustee  for  the  time  being  shall  stand  possessed  of  the  said 
trust  moneys  stocks  funds  and  securities  or  so  much  thereof  as  shall  not  have 
been  disposed  of  under  the  powers  and  authorities  herein  contained  and  the 
dividends  interest  and  annual  produce  thereof  (subject  nevertheless  to  the 
trusts  hereinbefore  declared)    Upon  and  for  the  trusts  intents  and  purposes 
hereinafter  expressed  and  declared  of  and  concerning  the  same  that  is  to  say  If 
the  said  Charles  Catchpole  shall  depart  this  life  in  the  lifetime  of  the  said 
Grace  Gurney  In  trust  for  the  said  Grace  Gurney  her  executors  adminis- 
trators and  assigns  for  her  own  benefit     But  if  the  said  Grace  Gurney  shall 
depart  this  life  in  the  lifetime  of  the  said  Charles  Catchpole  then  after  the 
decease  of  the  said  Charles  Catchpole  and  such  failure  of  children  as  afore- 
said Upon  and  for  such  trusts  intents  and  purposes  and  in  such  manner  as  the 
said  Grace  Gurney  by  her  last  will  or  any  codicil  or  testamentary  writing  to 
be  by  her  duly  executed  notwithstanding  her  said  intended  coverture  shall  di- 

ig)  See  ante,  p.  249. 


532  APPENDIX. 

rect  or  appoint(A)  And  in  default  of  such  direction  or  appointment  and  so 
far  as  any  such  direction  or  appointment  if  incomplete  shall  not  extend  In 
TRUST  for  the  person  or  persons  who  under  the  statutes  made  for  the  distribu- 
tion of  the  estates  of  intestates  would  at  the  decease  of  the  said  Grace  Gur- 
ney  be  entitled  to  her  personal  estate  in  case  she  had  died  possessed  of  the 
same  intestate  and  without  having  been  married  and  to  be  divided  between 
or  amongst  the  same  persons  if  more  than  one  in  the  shares  in  which  the  same 
would  under  the  same  statutes  be  divided  between  or  amongst  them  Provided 
ALWAYS  and  it  is  hereby  agreed  and  declared  by  and  between  the  said  parties 
hereto  that  after  the  decease  of  the  said  Charles  Catchpole  and  Grace  Gurney 
r^QQfin  *^"^  whilst  any  child  or  children  of  the  said  intended  marriage  being 

a  son  or  sons  shall  be  under  the  age  of  twenty-one  years  or  being  a 
daughter  or  daughters  shall  be  under  that  age  and  unmarried  the  said  trustee 
or  trustee  for  the  time  being  of  these  presents  do  and  shall  apply  the  whole 
or  such  part  as  the  said  trustees  or  trustee  for  the  time  being  shall  think  fit 
of  the  dividends  interest  and  annual  produce  of  the  expectant  or  presumptive 
share  of  each  such  child  in  the  said  trust  moneys  stocks  funds  and  securities 
for  or  towards  his  or  her  maintenance  and  education  or  otherwise  for  his  or 
her  benefit  and  that  the  said  trustees  or  trustee  for  the  time  being  may  either 
themselves  or  himself  so  apply  the  same  or  may  pay  the  same  to  the  guardian 
or  guardians  of  such  child  for  the  purpose  aforesaid  without  seeing  to  the  ap- 
plication thereof(i)  And  do  and  shall  lay  out  and  invest  the  surplus  if  any 
of  the  said  interest  dividends  and  annual  produce  in  the  names  or  name  of 
the  said  trustees  or  trustee  for  the  time  being  in  any  of  the  stocks  funds  or 
securities  hereinbefore  mentioned  to  be  from  time  to  time  altered  and  varied 
for  or  into  any  other  stocks  funds  and  securities  of  a  like  nature  as  often  as 
the  said  trustees  or  trustee  shall  think  fit  so  that  the  same  may  accumulate  by 
way  of  compound  interest  and  the  accumulations  to  be  so  made  shall  be  added 
to  the  fund  or  respective  funds  from  which  the  same  shall  have  proceeded  and 
be  subject  to  the  same  trusts  and  provisions  in  every  respect  and  so  that  the 
dividends  interest  and  annual  produce  of  each  such  accumulated  fund  may  be 
subject  to  the  provision  hereinbefore  contained  for  the  maintenance  and  edu- 
cation at  any  subsequent  period  of  minority  of  the  child  from  whose  expectant 
or  presumptive  share  the  same  shall  have  proceeded  Provided  also  and  it 
is  hereby  agreed  and  declared  that  it  shall  be  lawful  for  the  said  trustees  or 
trustee  for  the  time  being  of  these  presents  during  the  joint  lives  of  the  said 
Charles  Catchpole  and  Grace  Gurney  with  their  consent  in  writing  and  after 
the  decease  of  either  of  them  with  the  consent  in  writing  of  the  survivor  of 
them  which  consent  shall  be  binding  whether  the  said  Grace  Gurney  shall  be 

covert  or  sole  and  after  the  decease  of  such  survivor  at  the  discretion 
'-         -^  *of  the  said  trustees  or  trustee  for  the  time  being  to  raise  and  apply 

(/j)  See  ante,  p.  247.  {%.)  See  ante,  pp.  254 — 257. 


APPENDIX.  533 

a  sufficient  part  of  the  expectant  share  of  any  child  of  the  said  intended  mar- 
riage in  the  said  trust  moneys  stocks  funds  and  securities  for  or  towards  his  or 
her  advancement  in  the  world  notwithstanding  he  or  she  shall  not  then  have 
attained  the  age  of  twenty-one  years  or  after  he  or  she  may  have  attained 
that  age  in  the  lifetime  of  the  said  Charles  Catchpole  and  Grace  Gurney  or 
the  survivor  of  them  Provided  always  and  it  is  hereby  agreed  and  declared 
by  and  between  the  said  parties  hereto  that  it  shall  be  lawful  for  the  said  trus- 
tees or  trustee  for  the  time  being  at  any  time  or  times  during  the  lives  or  life 
of  the  said  Charles  Catchpole  and  Grace  Gurney  or  the  survivor  of  them  with 
their  his  or  her  consent  and  approbation  in  writing  signed  with  their  his  or 
her  hands  or  hand  to  convert  into  money  the  whole  or  any  part  of  the  said 
stocks  funds  and  securities  and  to  lay  out  the  moneys  arising  thereby  in  the 
purchase  of  any  freehold  or  copyhold  estates  in  England  or  Wales  of  an  es- 
tate of  inheritance  in  fee  simple  in  possession  free  from  all  incumbrances  ex- 
cept quit  rents  and  copyhold  and  customary  dues  and  services(^)  to  be  con- 
veyed or  surrendered  to  the  said  trustees  or  trustee  for  the  time  being  their 
or  his  heirs  and  assigns  Upon  trust  nevertheless  with  the  consent  and  ap- 
probation of  the  said  Charles  Catchpole  and  Grace  Gurney  or  the  survivor  of 
them  to  be  signified  by  writing  signed  with  their  his  or  her  hands  or  hand 
during  the  lifetime  of  them  or  the  survivor  of  them  and  after  the  decease  of 
the  survivor  of  them  then  at  the  discretion  and  of  the  proper  authority  of  the 
said  trustees  or  trustee  for  the  time  being  of  these  presents  to  sell  and  dispose 
of  the  said  estates  which  shall  have- been  so  purchased  as  aforesaid  either  by 
public  auction  or  private  contract  in  one  lot  or  in  parcels  subject  to  such 
special  conditions  of  sale  and  for  such  price  or  prices  as  to  the  said  trustees 
or  trustee  for  the  time  being  shall  seem  reasonable  with  power  at  any  public 
auction  of  the  said  premises  or  any  of  them  to  buy  in  the  same  or  any  of 
them  and  also  to  vary  or  rescind  any  contract  for  the  sale  of  the  same  or  any 
part  thereof  and  to  resell  the  same  in  manner  *aforesaid  without  re-  ^qq-t 
sponsibility  for  any  loss  to  be  occasioned  thereby  and  to  convey  and 
assure  the  said  premises  which  shall  be  sold  to  the  purchaser  or  respective 
purchasers  thereof  or  as  he  she  or  they  respectively  shall  direct  And  upon 
TRUST  to  apply  the  moneys  arising  from  such  sale  after  payment  of  the  costs 
charges  and  expenses  attending  the  same  Upon  and  for  such  and  the  same 
trusts  intents  and  purposes  as  the  moneys  so  raised  and  laid  out  in  the  pur- 
chase of  such  estates  were  subject  to  before  such  purchase  was  made  or  would 
have  been  subject  to  if  the  same  had  not  been  laid  out  therein  And  also 
upon  TRUST  in  the  meantime  and  until  such  estates  shall  be  so  resold  to  ap- 
ply the  rents  and  profits  thereof  in  such  manner  as  the  interest  dividends  and 
annual  produce  of  the  moneys  laid  out  in  the  purchase  thereof  would  have 
been  applicable  under  the  trusts  hereinbefore  declared  in  case  such  purchase 

(k)  See  a7Ue,  p.  262. 


534  APPENDIX. 

bad  not  been  made  It  being  hereby  agreed  and  declared  that  the  estates  to 
be  purchased  under  this  present  power  as  aforesaid  shall  when  so  purchased 
be  considered  as  money  and  be  subject  to  such  and  the  same  trusts  in  all  re- 
spects as  the  moneys  laid  out  in  the  purchase  thereof  were  subject  to  before 
such  purchase  was  made  or  would  have  been  subject  to  if  the  same  had  not 
been  laid  out  therein  Provided  always  and  it  is  hereby  agreed  and  de- 
clared by  and  between  the  said  parties  hereto  that  it  shall  be  lawful  for  the 
trustees  or  trustee  for  the  time  being  of  the  estates  so  to  be  purchased  by  vir- 
tue of  such  power  as  aforesaid  with  the  consent  and  approbation  of  the  said 
Charles  Catchpole  and  Grace  Grurney  or  the  survivor  of  them  testified  by 
some  writing  under  their  his  or  her  hands  or  hand  and  after  the  decease  of 
such  survivor  then  at  the  discretion  and  of  the  proper  authority  of  the  said 
trustees  or  trustee  by  deed  at  any  time  or  times  to  demise  and  lease  the  same 
estates  or  any  of  them  or  any  part  thereof  to  any  person  or  persons  whomso- 
ever for  any  term  of  years  not  exceeding  twenty-one  years  to  take  eifect  in 
possession  and  not  by  way  of  future  interest  at  the  best  yearly  rent  that  can  be 
had  or  gotten  for  the  same  and  without  any  fine  or  foregift  for  the  making 
thereof  and  upon  such  other  terms  and  conditions  as  the  said  trustees  or 
trustee  shall  think  fair  and  reasonable  Provided  always  and  it  is  hereby 
r*^Q81  ^§^®®*^  ^"^  declared  by  and  between  *the  said  parties  hereto  that  it 
shall  be  lawful  for  the  trustees  or  trustee  for  the  time  being  of  these 
presents  with  the  consent  in  writing  of  the  said  Charles  Catchpole  and  Grace 
Gurney  during  their  joint  lives  and  after  the  decease  of  either  of  them  with 
the  consent  in  writing  of  the  survivor  of  them  and  after  the  decease  of  such 
survivor  at  the  discretion  of  the  said  trustees  or  trustee  to  settle  and  ascertain 
in  such  manner  as  they  or  he  shall  deem  expedient  the  amount  of  any  moneys 
properties  or  effects  due  to  or  claimed  by  them  or  him  under  these  presents 
by  virtue  of  the  will  of  the  said  John  Gurney  deceased  and  also  to  pass  and 
allow  the  accounts  of  the  person  or  persons  paying  over  or  transferring  the 
same  moneys  properties  or  effects  or  any  part  thereof  and  to  accept  any 
moneys  properties  or  effects  which  the  said  trustees  or  trustee  for  the  time 
being  with  such  consent  or  at  such  discretion  as  aforesaid  shall  deem  it  expe- 
dient to  accept  in  lieu  of  or  satisfaction  for  the  whole  of  the  said  premises 
hereby  assigned  and  to  give  releases  and  discharges  to  the  accounting  party 
or  parties  for  the  same  premises  or  any  part  thereof  as  fully  and  efifectually  as 
the  trustees  or  trustee  for  the  time  being  of  these  presents  might  or  could  do 
if  they  or  he  were  absolute  and  beneficial  owners  or  owner  of  such  premises 
And  if  any  disputes  or  difficulties  shall  at  any  time  arise  in  relation  to  the 
said  premises  hereby  assigned  or  any  part  thereof  it  shall  be  lawful  for  the 
trustees  or  trustee  for  the  time  being  of  these  presents  if  they  or  he  shall 
think  proper  with  such  consent  or  at  such  discretion  as  aforesaid  to  refer  any 
such  disputes  or  difficulties  to  arbitration  in  the  usual  manner  or  otherwise  to 


APPENDIX.  535 

settle  and  adjust  the  same  in  such  manner  in  all  respects  as  the  said  trustees 
or  trustee  for  the  time  being  with  such  consent  or  at  such  discretion  as  afore- 
said shall  think  proper  Provided  also  and  it  is  hereby  further  agreed  that 
it  shall  be  lawful  for  the  trustees  or  trustee  for  the  time  being  of  these  pres- 
ents in  their  or  his  discretion  to  postpone  or  forbear  the  exercise  and  enforce- 
ment of  all  or  any  of  the  powers  and  remedies  hereby  vested  in  or  which  shall 
or  may  be  exercisable  by  such  trustees  or  trustee  by  virtue  hereof  anything 
herein  contained  or  any  rule  at  law  or  equity  to  the  contrary  notwithstanding 
Provided  also  and  it  is  hereby  agreed  and  declared  by  and  between  the  said 
parties  hereto  *that  the  receipts  in  writing  of  the  trustees  or  trustee  r^onoT 
for  the  time  being  acting  in  the  execution  of  the  trusts  or  pow^r?  of 
these  presents  for  any  moneys  payable  to  them  or  him  by  virtue  of  these  pres- 
ents shall  effectually  discharge  the  person  or  persons  paying  the  same  from  all 
responsibility  as  to  the  misapplication  or  nonapplication  thereof  and  from  all 
obligation  of  seeing  to  the  application  thereof(0  And  also  that  it  shall  be 
lawful  for  the  trustees  or  trustee  for  the  time  being  of  these  presents  but 
during  the  lives  of  the  said  Charles  Catchpole  and  Grace  Gurney  and  the  life 
of  the  survivor  of  them  with  their  his  or  her  consent  in  writing  to  accept 
other  real  securities  for  any  part  of  the  said  trust  funds  which  may  be  invested 
in  real  securities  and  the  interest  thereof  in  lieu  of  and  as  a  substitution  for 
the  hereditaments  or  any  part  of  the  hereditaments  comprised  in  any  such 
security  And  also  to  discharge  from  any  such  security  any  part  or  parts  of 
the  hereditaments  therein  comprised  and  without  which  the  said  trustees  or 
trustee  shall  deem  the  existing  security  or  securities  sufficient  and  every  such 
acceptance  of  a  new  security  and  every  release  of  all  or  any  part  of  the  here- 
ditaments comprised  in  the  existing  securities  shall  be  binding  on  all  persons 
interested  in  the  said  trust  funds  and  the  interest  thereof  and  the  persons 
deriving  title  to  the  hereditaments  so  released  shall  not  be  obliged  to  inquire 
into  the  sufficiency  in  point  of  value  or  title  of  the  substituted  or  retained 
security  or  securities  Provided  also  and  it  is  hereby  further  agreed  and 
declared  by  and  between  the  said  parties  hereto  that  if  the  said  trustees  here- 
inbefore appointed  or  any  or  either  of  them  or  any  future  trustee  or  trustees 
to  be  appointed  as  hereinafter  is  mentioned  shall  happen  to  die  or  shall  go  to 
reside  beyond  the  seas  or  shall  be  desirous  of  being  discharged  or  shall  decline 
or  become  incapable  to  act  in  the  trusts  or  powers  herein  contained  before  the 
same  shall  be  fully  performed  or  otherwise  satisfied  then  and  in  every  such 
case  it  shall  be  lawful  for  the  said  Charles  Catchpole  and  Grace  Gurney 
during  their  joint  lives  and  after  the  decease  of  either  of  them  for  the  sur- 
vivor of  them  and  after  the  decease  of  such  survivor  for  the  surviving  or  con- 
tinuing trustees  or  *trustee  for  the  time  being  of  these  presents  or  the  r^jc^QA-i 
acting  executors  or  administrators  of  the  last  surviving  or  continuing 

(/)  See  ante,  p.  263. 


536  APPENDIX. 

trustee  (and  for  this  purpose  a  retiring  trustee  shall  if  willing  to  act  in  the 
execution  of  this  power  be  considered  a  continuing  trustee)  by  any  deed  or 
deeds  instrument  or  instruments  in  writing  to  be  by  them  him  or  her  sealed 
and  delivered  in  the  presence  of  and  to  be  attested  by  two  or  more  credible 
witnesses  to  substitute  and  appoint  any  other  person  or  persons  to  be  a  trustee 
or  trustees  in  lieu  of  the  trustee  or  trustees  so  dying  going  to  reside  beyond 
the  seas  desiring  to  be  discharged  declining  or  becoming  incapable  to  act  as 
aforesaid(m)  And  that  when  any  new  trustee  or  trustees  shall  have  been 
appointed  as  aforesaid  all  the  said  trust  estates  moneys  and  premises  which 
shall  be  then  vested  in  the  trustees  or  trustee  for  the  time  being  of  these 
presents  or  in  the  heirs  executors  or  administrators  of  the  last  surviving  or 
continuing  trustee  shall  with  all  convenient  speed  be  conveyed  assigned  trans- 
ferred and  paid  so  as  effectually  to  vest  the  same  in  the  surviving  or  continu- 
ing trustees  or  trustee  and  such  new  or  other  trustee  or  trustees  or  if  there 
shall  be  no  surviving  or  continuing  trustee  then  in  such  new  trustees  or  trus- 
tee only  upon  the  same  trusts  as  are  hereinbefore  declared  concerning  the 
same  or  such  of  the  same  trusts  as  shall  be  subsisting  or  capable  of  taking 
effect  And  it  is  hereby  agreed  and  declared  that  every  such  new  trustee 
shall  in  all  things  act  and  assist  in  the  management  and  execution  of  the 
trusts  and  powers  to  which  he  shall  be  so  appointed  as  effectually  and  with 
the  same  powers  authorities  exemptions  and  discretion  as  if  he  had  been 
originally  by  these  presents  nominated  a  trustee  for  the  purposes  aforesaid 
In  witness  whereof  the  said  parties  to  these  presents  have  hereunto  set  their 
hands  and  seals  the  day  and  year  first  above  written. 

(m)  See  ante,  p.  265. 


INDEX. 

The  pages  referred  to  are  those  between  brackets,  [   ]. 

A. 

Ability,  representation  as  to,  79,  378. 
Abstract  of  title,  379. 
Acceptance  of  goods,  what  is,  38. 

of  offer,  77. 
Acceptor  of  a  bill,  liability  of,  81. 
Accumulation,  restraint  on,  245. 

Acknowledgment,  remarks  on,  by  wife,  of  the  conveyance  of  her  real  estate,  363. 
Act  of  bankruptcy,  what  is,  117,  126-133,  156,  157.  _ 

bonajide  transactions  valid  notwithstanding,  141. 
— See  Bankrdptcy. 
Action,  chose  in,  4,  111,  345,  346,  347,  377.— See  Chose  in  Action. 
Actions,  real,  personal  and  mixed,  3. 
ex  delicto,  61. 
personal,  62. 
for  dilapidations,  64. 
of  detinue,  3. 
of  trover,  23,  43,  46. 
of  replevin,  3. 
of  debt,  5,  66. 

of  debt  by  husband  for  arrears  of  wife's  rent,  347. 
limitation  of,  370-374. 
Ademption  of  specific  legacy,  317. 
Adjudication  of  bankruptcy,  134. 
Administration,  stamp  on  letters  of,  331. 
limited,  330. 

husband's  right  to,  of  his  wife's  effects,  347. 
Administrator  diirante  minor  ceiate,  302,  330. 
who  appointed,  327. 
joint,  328. 

rights  and  powers  of,  329. 
his  year,  ib. 
durante  absentia,  330. 
pendente  lite,  330. 
cum  testamento  annexo,  331. 
office  of,  not  transmissible,  332. 
de  bonis  non,  ib. 

not  bound  to  plead  the  Statute  of  Limitations,  374. 
Admiralty,  high  court  of,  58,  91. 
Admission  of  debt,  130. 
Advancement  to  children,  to  be  accounted  for  in  distribution,  333. 

form  of  power  of,  in  a  settlement,  395. 
Affidavit  of  debt,  filing  an,  130. 


538  INDEX. 


Agents,  368. 

Agreements  which  require  to  be  in  writing,  38,  40,  73. — See  Contracts. 
stamp  on,  74. 
by  letter,  77. 

bonds  for  performance  of,  104. 
Alien,  43. 

may  be  bankrupt,  125. 
Alienation  of  choses  in  possession,  32,  35. 
void,  44. 
involuntary,  47. 

of  choses  in  action,  111,  112,  113,  343,  351. 
growth  of  right  of  testamentary,  294.— See  Assignment. 
Alimony,  360. 

Allowance  of  bankrupt,  143. 
Alteration  of  a  deed,  88. 
A.siyi.k'L'&fercenahirce,  19. 
Annuities,  bank. — See  Stock  in  the  Funds. 
Annuitt  creditors,  proof  by,  137. 
apportionment  of,  240. 

apportionable  if  given  for  maintenance,  241. 
legacy  duty  on,  316. 
warrant  of  attorney  to  secure,  94. 
personal,  180. 
Anticipation,  restraint  on,  356. 
Appointment  of  portions,  247. 
illusory,  248. 
exclusive,  ib. 
voluntary,  246. 
amongst  a  class,  249. 
to  issue  of  a  child,  when  good,  250. 
fraudulent  by  a  father,  251. 
creating  a  perpetuity,  252. 
of  new  trustees,  264. 
by  wife  in  favor  of  her  husband,  357. 
form  of  power  of,  amongst  children,  392. 
form  of  power  of  by  wife,  394. 
Apportionment  of  income,  240. 
Arbitration,  165. 

jurisdiction  of  the  courts  in  matters  referred  to,  165. 
act  for  determining  differences  by,  167. 
power  of  assignees  to  submit  to,  293. 
every  submission  may  be  made  a  rule  of  court,  168. 
revocation  of  submission  to,  ih. 
death  of  parties,  169. 
Arbitrator  may  state  special  case,  174. 

on  failure  of  parties,  judge  may  appoint,  169,  176. 
death  of,  170. 
appointment  of,  ih. 
two  may  appoint  umpire,  176. 
Arrangements  by  deed  between  a  trader  and  his  creditors,  115,  118,  122. 

under  control  of  court  of  bankruptcy,  118,  122. 
Arrears  of  rent,  101. 

of  rent,  limitation  of  actions  for,  372. 
action  by  husband  for,  of  rent  of  wife's  estate,  347. 
of  interest  on  bond,  103. 
of  interest,  limitation  of  actions  for,  372. 
of  dower,  372. 
Articles  of  association,  204. 

qu£B  ipso  usu  consumuntur,  239. 


INDEX.  539 

Assent  of  executor,  301. 

Assets,  executor  not  liable  beyond  amount  of,  314. 
Assignees  of  bankrupt,  140,  141. 
official,  135. 
of  insolvent,  151. 

what  proceedings  of,  require  consent  of  creditors,  293. 
Assignment  of  choses  in  possession,  32,  33,  35. 
of  choses  in  action,  111,  112,  351. 
notice  of,  377. 
of  breaches,  104. 
of  letters-patent,  222. 
of  copyright,  227. 
in  trust  for  creditors,  117. 
of  wife's  reversionary  choses  in  action,  351. 
inquiry  as  to  prior,  of  chose  in  action,  377. 
of  choses  in  action,  form  of  an,  389. 
Association,  memorandum  of,  202,  203. 

articles  of,  204. 
Assumpsit,  68. 
Attorney,  warrant  of,  93, 

execution  aud  attestation  of  warrant  of,  95. 
warrant  of,  formerly  executed  by  insolvent  debtor,  153. 
power  of,  on  assigning  a  legal  chose  in  action.  111. 
power  of,  construed  strictly,  368. 
form  of  a  power  of,  390. 

not  liable  as  a  trader  to  the  bankrupt  laws,  125. 
Auction,  sale  by,  40. 
Award,  171. 

time  of  making,  ib. 

enlargement  of  time  of  making,  ib. 

must  be  certain  and  final,  173. 

setting  aside,  174. 

efi'ect  of,  178. 

performance  of,  ib. 

for  payment  of  money  creates  a  debt,  ib. 

under  seal  not  a  deed,  179. 

stamp  on,  ib. 

limitation  of  actions  on,  373. 

B. 

Bailee,  possession  of,  26,  39. 

Bailment,  25. 

Bank  annuities. — See  Stock  in  the  Funds. 

notes,  title  to,  365. 
Banking  companies,  195. 

act  for  incorporation  of,  198. 
Bankruptcy,  who  may  be  bankrupt,  124. 

of  joint  stock  companies,  199. 

of  a  trading  partnership,  286. 

act  of,  48,  117,  126,  133,  156,  157. 

registration  of  deed  of  composition,  116,  118. 

concerted,  128. 

petitioning  creditor,  131,  133. 

fiat,  133. 

goods  in  bankrupt's  possession,  order  or  disposition,  50.^ 

choses  in  action  in  bankrupt's  possession,  order  and  disposition,  377. 

former  revival  of  debt  barred  by,  72. 

court  of,  91,  133,  139. 


540  INDEX. 

Bankruptcy,  judgment  on  warrant  of  attorney  or  cognovit,  in  case  of,  96. 

how  assignees  sue  for  debts,  114,  280. 

exercise  of  powers  by  assignees  in,  246. 

when  assignment  in  trust  for  creditors  an  act  of,  117. 

adjudication  of,  134. 

proof  in,  136,  139. 

debts  paid  ratably  in,  143. 

certificate,  146. 

uncertificated  bankrupt,  147.  _ 

does  not  determine  a  submission  to  arbitration,  170. 

voluntary  assignment  void  in  event  of,  272. 

consent  of  creditors  to  proceedings  of  assignees,  293. 

deed  of  arrangement  to  be  registered,  120. 

after  registration  the  court  has  jurisdiction,  ih. 

protection  after  notice  of  registration,  ib. 

provision  in  case  debtor  cannot  obtain  assent  of  requisite  majority  of 
creditors,  121. 

debtor  may  petition  against  himself,  127. 

judgment  debtor  summons,  128,  129,  157. 

debtor  to  be  examined,  129. 

filing  affidavit  of  debt,  130. 

admission  of  debt  and  non-payment,  ih. 

what  are  reckoned  debts,  132. 

gazette  is  evidence  of,  135. 

official  assignee,  135,  141. 

creditors'  assignee,  140,  141. 

contingent  liabilities,  137. 

interest,  costs,  138,  144. 

apportionment  of  rent,  138. 

debt  payable  by  instalments,  ih. 

unliquidated  damages,  ih. 

premiums  on  policies  of  insurance,  139. 

court  may  expunge  or  reduce  proof,  ih. 

creditor  holding  security,  ih. 

power  to  mortgage  or  pledge  bankrupt's  property,  142. 

power  to  sell  debts,  goodwill,  &c.,  143. 

dividend,  ih. 

allowance,  ib. 

power  to  suspend  proceedings,  145. 

power  to  wind  up  estate  by  deed,  ih. 

order  of  discharge,  147. 

entry  of  proceedings  on  record,  ih. 

pauper  and  lunatic  prisoners,  157. 

half-pay,  &c.,  ih. 

sequestration,  ib. 

of  non- traders,  149. 

acts  of,  156. 
lying  in  prison,  157. 
escape,  ib. 

declaration  of  insolvency,  ih. 
judgment  debtor  summons,  ib. 
Barnard's  Act,  now  repealed,  185. 
Bastard,  gift  by  will  to,  322. 
Benefice,  charge  by  clergyman  on,  void,  87. 

right  of  nomination  to,  does  not  pass  to  assignees,  246. 
sequestration  of,  in  bankruptcy,  158. 
Bequest  of  stock  in  the  funds,  189. 
executory,  237. 
general,  operates  as  an  exercise  of  a  general  power,  247. 


INDEX.  541 

Bequest  to  charities,  820. 

to  illegitimate  children,  322. 
to  joint  tenants,  823. 
to  tenants  in  coijimon,  ib. 
to  a  class,  ib. 
Bills  of  exchange,  79. 

■what  prohibited,  80. 
indorsement  of,  81. 
liability  of  drawer  and  acceptor,  ib. 
protest  of,  ib. 

consideration  presumed,  82. 

have  no  preference  over  other  simple  contract  debts,  105. 
always  carry  interest,  107. 
title  to,  3G5. 
of  lading,  35,  58. 
of  sale,  filing  of,  46. 
Bona  notabilia,  306,  310. 
BoxD,  101. 

to  induce  cohabitation  void,  85. 
for  pas't  cohabitation  good,  ib. 
single,  102. 
•with  condition,  ib. 
stamp  on,  103. 
joint,  276,  278,  284. 
joint  and  several,  286. 
for  performance  of  agreements,  104. 
interest  of  money  secured  by,  107. 
limitation  of  actions  on,  371. 
voluntary,  105. 
Bonus,  240. 
Bottomry,  163. 
Breaches,  assignment  of,  104. 
British  possessions  abroad,  copyright  in,  228. 

ships,  52. 
Brothers,  right  of,  under  Statute  of  Distributions,  333. 
Building  societies,  211,  212. 

C. 

Capias  ad  satisfaciendum,  -writ  of,  100. 
Casts,  copyright  in,  230. 
Certificate  of  ship's  registry,  54. 
bankrupt's,  146. 

of  mortgage  and  sale  of  ships,  57. 
of  shares  or  stock,  205. 
Chancery,  Court  of,  investments  of,  182,  259. 

order  of,  restraining  transfer,  376. 
Character,  representations  as  to,  79. 
Charities,  bequest  to,  320. 
Charter  party,  58. 

companies  incorporated  by,  191. 
Chattels  which  descend  to  the  heir,  9. 
personal,  2.  • 

of  wife  belong  to  her  husband,  344. 
real,  1. 
vegetable,  16. 

sale  of,  in  market  overt,  366. 
Children,  appointments  to,  247,  249. 
younger,  250. 


642  INDEX. 

Children,  in  ventre,  ib.- 

vesting  of  portions  of,  254. 
maintenance  of,  254,  255,  361. 

form  of  power  of  maintenance  of,  in  a  settlement,  394. 
covenant  to  settle  property  on,  271. 
gifts  to  illegitimate,  322. 
gifts  to,  lb.,  324. 

shares  of,  under  Statutes  of  Distribution,  333. 
custody  of  infant,  359,  361. 
order  to  settle  property  on,  361. 
form  of  powers  of  appointment  amongst,  392. 
form  of  trusts  for,  393. 
Chose  in  action,  4,  5,  345,  346,  347. 

assignment  of  legal,  111. 
assignment  of  equitable,  112. 
right  of  husband  to  wife's  legal,  346. 
right  of  husband  to  wife's  equitable,  347. 
Statute  of  Limitations  as  to,  370. 
notice  of  assignment  of,  377. 
in  possession,  4,  5. 

alienation  of,  32,  35,  47. 
title  to,  366. 

Statutes  of  Limitation  as  to,  370. 
Civil  law,  age  at  which  a  will  may  be  made  by  the,  295. 

degrees  of  kindred  traced  according  to  the,  334. 
rules  of  the,  as  to  restraint  of  marriage,  340. 
Class,  appointment  amongst  a,  249. 

bequest  to  a,  323. 
Clauses  Consolidation  Acts,  192,  193. 
Clergyman,  insolvent,  151. 
bankrupt,  158. 
action  for  dilapidations,  64. 
waste  by,  65. 
Coat  armor,  13. 
Co-debtor,  payment  by,  285. 
Cognovit,  93. 

execution  and  attestation  of,  95. 
to  be  filed  within  twenty-one  days,  96. 
effect  of,  in  case  of  bankruptcy,  ib. 
Cohabitation,  bond  to  induce,  void,  85. 

bond  for  past,  good,  ib. 
Colonies,  patent  for,  222. 

copyright  in,  228. 
Commission  of  bankruptcy,  133. 
Committee  of  lunatic  entitled  to  stock,  186. 

man,  liability  of  provisional,  292. 
Common  Law  Procedure  Acts,  1854  and  1860,  113. — And  see  Statutes. 
Companies,  joint  stock,  191. — See  Joint  Stock  Companies. 
Comparison  of  title  to  real  and  personal  estate,  380. 
Composition  with  creditors,  115. 
act  to  facilitate,  122. 
by  assignees  of  bankrupt,  293. 
Concerted  bankruptcy,  128.  . 

Consent  to  change  of  investments,  261. 

forfeiture  on  marriage  without,  341. 
Consideration  necessary  to  a  contract,  68. 
executed,  69. 
illegal,  ib. 
valuable,  70,  71. 
good,  ib. 


INDEX.  643 


Consideration  must  be  in  writing  to  form  a  written  contract,  75. 

why  presumed  to  a  note,  82. 
Consols,  182. — See  Stock  in  the  Funds. 
Contingency,  proof  of  debts  payable  on,  137. 
Contingent  liabilities,  proof  of,  in  bankruptcy,  ih. 

remainders,  none  in  personal  estate,  244. 
Contracts,  66. 

by  deed,  83. 

when  writing  required  to,  36,  40,  73. 
definition  of,  68. 
parol,  ib. 

with  unlawful  object,  84. 
with  lawful  object,  ib. 
by  way  of  gaming  void,  88. 
for  restraint  of  trade,  86. 
usurious,  88. 
for  sale  of  goods,  36. 
Contributories,  208. 

Conversion  of  money  into  laud  or  land  into  money,  262. 
Conveyancer,  certificated,  has  no  general  lien,  30. 
Convicts,  44. 
Copyright,  224. 

in  encyclopaedias,  reviews,  &c.,  225. 
in  dramatic  and  musical  compositions,  226. 
foreigner  entitled  to,  lb. 
registry  of  proprietors,  227. 
assignment  of,  ib. 
personal  property,  228. 
in  prints,  maps,  &c.,  228,  229. 
in  sculptures,  230. 

paintings,  drawings,  and  photographs,  231. 
international,  ib. 
newspapers,  233. 
in  designs,  ib. 
Corporations,  191. 
Costs,  of  writ  of  mandamus,  61. 

proof  of,  in  bankruptcy,  138. 
of  trustees,  267. 
Co-sureties,  109. 

County  Courts,  registry  of  judgments  in,  100. 
Court  for  Divorce  and  Matrimonial  Causes,  360. 

dissolution  of  marriage,  360,  361. 
protection  of  wife  deserted  by  husband,  360. 
alimony,  ib. 

judicial  separation,  361. 
wife  a  feme  sole,  ib. 

custody,  maintenance,  &c.,  of  children,  ib. 
settlement  on  judicial  separation,  ib. 
Covenant,  101. 

to  insure  against  fire,  161. 
stamps  on,  103. 

for  settlement  of  wife's  future  property,  270. 
to  settle  husband's  property,  271. 
joint,  276,  278,  282. 
joint  and  several,  284. 
not  to  sue  one  joint  and  several  debtor,  285. 
for  title,  379. 
Creditors,  gifts  for  defrauding,  45,  272. 
remedies  of  judgment,  99. 
composition  with,  115,  118,  122. 


544  INDEX. 


Creditors,  assignment  in  trust  for,  117. 

petitioning  on  bankruptcy,  131. 
proof  by,  holding  security,  139. 
assignees  of,  in  bankruptcy,  140. 
voluntary  settlement  void  as  against,  272. 
trust  for  payment  of,  when  revocable,  272. 
consent  of,  required  for  what  proceedings  of  assignees,  293. 
may  by  custom  take  out  administi-ation,  328. 
Statutes  of  Limitation  not  affected  by  death  of,  374. 
Crops,  17. 
Crown  debts,  92. 

in  bankrujjtcy,  144. 
jewels,  13. 

right  of,  to  intestate's  estates  if  no  next  of  kin,  336. 
Customs  of  London  and  York,  335. 
of  Wales,  ib. 
of  trades,  369. 

Damages,  actions  wbich  sound  in,  66. 
liquidated,  67. 

limitation  of  actions  for,  373. 
Death,  actions  by  executors  in  case  of^  62. 

of  creditor,  effect  of,  374. 

of  debtor,  effect  of,  ib. 
De  bonis  non,  administration,  332. 
Debt,  action  of,  5,  66. 

by  husband  for  arrears  of  wife's  rents,  347. 
Debts,  how  assignable.  111. 

barred  by  bankruptcy,  72. 

barred  by  Statute  of  Limitations,  revival  of,  ib. 

incurred  during  infancy,  73,  78. 

involuntary  alienation  of,  113. 

of  record,  91. 

crown,  92,  144. 

judgment,  ib. 

execution  for  sums  over  50Z.,  48. 

charge  on  stock  of  judgment,  188,  213. 

specialty,  101. 

simple  contract,  104, 

interest  on,  107. 

when  taken  in  execution,  113. 

payment  of,  114. 

appropriation  of  payments,  ib. 

filing  an  affidavit  of  debt,  130. 

admission  of,  ib. 

proof  of,  in  bankruptcy,  136. 

set-off  of  mutual,  in  bankruptcy,  137. 

all  debts  in  bankruptcy  paid  ratably,  143. 

voluntary,  when  exempt  from  probate  duty,  311. 

payment  of,  by  executor,  ib. 

satisfaction  of,  by  legacies,  318. 

payment  of,  by  administrator,  329. 

husband's  liability  to  wife's,  353. 

covenant  to  indemnify  husband  against  wife's,  358. 

limitation  of  actions  for,  370 — 374. 

charge  of  real  estate  for  payment  of,  375. 

notice  to  debtor  on  assignment  of,  112,  377. 


INDEX.  545 

Debtor,  notice  to,  on  assigning  the  debt,  ib, 
bankruptcy  of. — See  Bankruptcy. 
insolvent. — See  Insolvent  Debtors. 

protection  of,  after  notice  of  registration  of  deed  of  arrangement,  120. 
appointment  of,  executor,  303. 
effect  of  death  of,  374. 
joint,  beyond  seas,  283. 
and  creditor,  defects  in  the  law  of,  105. 
Decease  of  person  giving  power  of  attorney,  368. 
Declaration  of  insolvency,  127. 
Decree  of  a  court  of  equity,  99. 
Deed,  title-deeds  pass  by  conveyance  of  the  lands,  9. 

tenant  for  life  entitled  to  a  possession  of  the  deeds,  11. 
alienation  by,  35. 
contracts  by,  83. 
alteration  or  rasure  of  a,  ib. 
solicitor's  lien  on,  29. 
boxes,  13. 

of  arrangement,  118. 
stamp  duty  on,  ih. 
Deer,  19. 

Defeazance  to  warrant  of  attorney,  93. 
Degrees  of  kindred,  how  traced,  334. 
Delivery,  alienation  of  personal  chattels  by,  33. 
constructive,  34,  39. 
order,  35,  365. 
Demonstrative  legacy,  317. 
Denizen  may  be  bankrupt,  125. 
Descent,  remarks  on  law  of,  336. 

to  distant  heirs  and  kindred,  338. 
Designs  of  articles  of  manufacture,  copyright  in,  233. 
Detinue,  action  of,  3. 

limitation  of  action  of,  370. 
Dilapidations,  64. 
Directors  of  joint  stock  companies,  powers  of,  291. 

notice  to,  ih. 
Disabilities,  savings  of,  370,  372,  373. 
Disclaimer  of  title  or  specification  of  invention,  220. 
Dishonor  of  bill  or  note,  notice  of,  82. 
Dissolution  of  marriage,  360,  361. 
Distant  heirs  and  kindred,  remarks  on  descent  to,  338. 
Distress  by  husband  for  arrears  of  wife's  rent,  347. 
Distribution,  statutes  of,  332. 

remarks  on  law  of,  336. 
Distringas,  187. 

Dividends,  payment  of,  in  bankruptcy,  143. 
apportionment  of,  240. 
unclaimed,  of  stock  in  the  funds,  375. 
Divorce,  court  for,  360. 
Dock  warrants,  35. 
Domicile,  298,  299. 
Donation  mortis  causd,  300. 
Dower,  legacy  in  lieu  of,  318. 

limitation  of  actions  for  arrears  of,  372. 
Dramatic  pieces,  copyright  in,  226. 
Drawee  of  a  bill,  80. 
Drawer  of  a  bill,  ib. 

liability  of,  81. 
Drawings,  copyright  in,  231. 

35 


546 


INDEX. 


Durante  absentid,  administrator,  330. 
Durante  minore  cetate,  administrator,  302,  330. 
Dwelling  Act,  Laborer's,  212. 

E. 

Education  of  children,  provisions  for,  255. 

form  of  power  of,  in  a  settlement,  394. 
Ejectment,  by  one  executor,  303. 
Election,  that  lands  should  not  be  sold,  263. 
Elegit,  writ  of,  49. 
Emblements,  17. 

Encyclopedias,  copyright  in,    225. 
Engravings,  copyright  in,  229. 
Equitable  chose  in  action,  6. 
Equity,  decree  of  Court  of,  99. 
life  interest  in,  238. 

considers  as  done  what  is  agreed  to  be  done,  262, 
of  wife  to  a  settlement,  348. 
Erasure,  83. 

Escape,  limitation  of  action  for,  373. 
Estates,  none  in  personal  property,  7,  236. 
Exchequer  bills,  258. 
Exclusive  appointment,  248. 
Execution  on  a  judgment,  47. 

in  case  of  bankruptcy,  97. 
sale  of  goods,  how  effected  by,  366. 
Executor,  actions  by,  for  injury  to  estate  of  deceased,  62. 

actions  against,  for  wrong  done  by  deceased,  64. 
.    liability  of,  carrying  on  trade,  289. 

appointment  of,  301. 

assent  of,  ib. 

of  executor,  302. 

appointment  of  debtor,  303. 

survivorship  of  office  of,  ib. 

renunciation  by  one  in  the  lifetime  of  another,  ib. 

de  son  tort,  304. 

acts  of,  before  probate,  305. 
•     power  of,  312,  313. 

purchase  from,  ib. 

his  year,  ib. 

liability  of,  314. 

his  former  right  to  the  residue,  324. 

now  trustee  for  the  nest  of  kin,  ib. 
Executors,  any  one  may  perform  acts  of  administration,  303. 

all  must  join  in  bringing  actions,  ib. 

as  to  ejectment,  ib. 

administrators  and  assigns,  use  of  the  words,  243. 

of  objects  of  a  power  cannot  take  under  an  appointment,  249, 

protection  to,  314. 

not  bound  to  plead  the  Statute  of  Limitations,  374. 
Executory  bequests,  237. 

interests  in  personal  estate,  245. 
Executrix,  married  women,  302. 


Factors,  368. 
Farm  buildings,  14. 


INDEX.  547 


Father,  appointments  by,  must  not  be  for  his  own  benefit,  251. 

bound  to  maintain  his  children,  256. 

right  of,  under  Statute  of  Distributions,  333. 
Felony,  forfeiture  on  conviction  of,  44. 
Feme  covert,  340. — See  Married  Woman  and  Wife. 
Fer^  naturce,  animals,  19. 
Fiat  in  bankruptcy,  133. — See  Bankruptcy. 
Fieri  facias,  writ  of,  48. 

securities  which  can  be  taken  under,  113. 
limitation  of  action  for  money  levied  under,  373. 
Fines  for  copyhold  estates,  limitations  of  actions  for,  ib. 
Fire  insurance,  162. 
Fish,  19. 
Fixtures,  13,  47. 

agricultural,  14. 
when  demised,  16. 
Foreign  judgment,  99. 

inventions,  218. 
Forfeiture  of  goods,  44. 
France,  convention  with,  as  to  copyright,  232. 
Fraud  on  a  power,  251. 

Frauds,  Statute  of. — See  Statute  29  Car.  II,  c.  3. 
Fraudulent  preference,  142. 
Freehold  land  societies,  212. 
Freight,  59. 
Friendly  societies,  209. 
Fruit,  17. 

Funds,  the. — See  Stock  in  the  Funds. 
Future  property,  covenants  to  settle,  270,  271. 

G. 

Game,  20. 

Gaming,  88. 
Garnisher,  113. 

Gazette  evidence  of  bankruptcy,  135. 
General  lien,  28. 
ship,  58. 
legacy,  317. 
Gift  and  delivery,  33. 

for  defrauding  creditors,  45. 
Goods,  property  in,  22,  48. 

constructive  delivery  of,  34. 

sale  of,  36—43,  77. 

what  is  an  acceptance  of,  38,  39. 

forfeiture  of,  44. 

mortgage  of,  46. 

gift  of,  for  life,  in  law,  236. 

in  equity,  238. 

stolen,  366. 

limitation  of  actions  for,  370. 
Government  securities,  what  are,  258. 
Grant  of  goods,  32. 
Guardians,  effect  of  concurrence  of,  in  settlements,  342. 


H. 

Half  blood,  claim  in  distribution  equally  with  the  whole,  334,  336. 
Hawks,  19. 


548  INDEX. 


Heir  looms,  12. 

Heir,  specialty  debts  in  which  he  is  bound,  101. 

Heirs,  word  inapplicable  to  personal  estate,  242. 

remarks  on  descent  to  distant,  338. 
Hire  of  goods,  26. 
Holder  of  a  bill  or  note,  82. 
Horses,  sale  of  stolen,  367. 
Hotchpot,  clause  of,  in  settlements,  249. 

advancements  to  be  brought  into,  on  intestacy,  333. 
form  of  clause  of,  in  a  settlement,  393. 
Hounds,  19. 
Husband,  covenant  to  settle  his  property,  271. 

no  duty  on  legacy  to,  315. 

ancient  rights  of,  343. 

right  to  wife's  chattels  personal,  344. 

gifts  by,  to  wife  of  jewels  and  trinkets,  345. 

his  right  to  wife's  legal  choses  in  action,  346. 

.     equitable  choses  in  action,  347. 

effect  of  his  assignment,  349. 

his  assignment  of  his  wife's  reversionary  choses  in  action,  351. 

his  liability  to  his  wife's  debts,  353. 

fraud  on  his  marital  rights,  ib. 

covenant  to  indemnify,  against  wife's  debts,  358. 

his  right  to  the  custody  of  infant  children,  359. 

and  wife,  remarks  on  law  of,  362. 

I. 

Idiot,  43. 

transfer  of  stock  of,  186. 
Illegality  of  contracts,  69,  84. 
Illegitimate  children,  gift  to,  322. 
Illusory  appointments,  248. 
Immoral  publication,  16. 

Importation  of  foreign  reprints  of  English  books,  228. 
Imprisonment  of  debtor  in  execution,  100. 

discharge  of  insolvent  from,  149,  150. 
saving  of  disability  of,  370. 
Income,  apportionment  of,  240. 
Incorporation  of  joint  stock  companies,  197. 
Incorporeal  personal  property,  180. 

anciently  none,  4. 
Indemnity  of  trustees,  263. 

Indorsement  of  sale  of  ship  on  certificate  of  registry,  54. 
of  bills  and  notes,  79,  80,  81. 
special,  81. 
in  blank,  ih. 
Industrial  and  provident  societies,  211. 
Infancy,  confirmation  of  debt  incurred  in,  73. 

saving  of  disability  of,  370. 
Infant,  43. 

cannot  be  a  bankrupt,  125. 
stock  of,  186. 
executor,  302. 
legacy  to,  316. 

marriage  settlements  of,  342. 
custody  of,  359. 
Inferior  courts  of  record,  91. 

judgments  of,  100. 


INDEX.  549 


Injunction,  writ  of,  fiO. 

Injury,  actions  by  executors  in  respect  of,  62. 

actions  against  executors  ia  respect  of,  64. 
Insolvency,  149,  153. 

declaration  of,  127. 
in  tiie  colonies,  128. 
Insolvent  debtors,  court  for  relief  of,  now  abolished,  155. 
schedule  of,  152. 
discharge  of,  149,  152. 

warrant  of  attorney  formerly  executed  by,  153. 
Inspectorship,  deed  of,  115. 
Insurance,  159. 

of  life,  159,  160. 
fire,  161. 

relief  against  forfeiture  by  breach  of  covenant,  162. 
lessor  to  have  benefit  of  informal,  ib. 
of  ships,  168. 

protection  of  purchasers  against  breach  of  covenant,  164. 
companies,  206. 
Interest,  legal  rate  of,  88. 

on  bills  and  notes,  89. 
on  judgment  debt,  99. 
on  bond,  102. 
on  debts,  107. 

appropriation  of  payments  towards,  114. 
rebate  of,  in  bankruptcy,  136. 
proof  of,  in  bankruptcy,  137. 
on  debts  proved  in  bankruptcy,  144. 
always  apportioned,  240. 
limitation  of  actions  for  arrears  of,  372,  373. 
International  copyright,  231. 
Intestacy,  327. 
Inventor  of  patent,  218. 
Investment  of  settled  funds,  257. 

form  of  trust  to  continue  or  vary  with  consent,  391. 
consent  to  change,  261. 
Ireland,  real  securities  in,  258. 
Irish  patent,  222. 
Issue,  appointment  to,  250. 


Joint  bequest,  no  lapse  by  decease  of  one  legatee,  323. 
bond,  all  must  sue,  276. 

release  by  one  obligee  barstall,  ib. 
form  of,  284. 
and  several  bond,  ib. 
covenant,  278. 

form  of,  282. 
and  several  covenant,  284. 
and  several  debts  in  bankruptcy,  286. 
debtors,  283. 
liability,  281. 
and  several  liability,  283. 

of  partners,  285. 
owners,  276. 

trustees  made,  277. 

shares  of,  under  a  will,  need  not  vest  at  the  same  time,  ib. 

limitation  to  them,  their  executors,  administrators  and  assigns,  ib. 


550  INDEX. 

Joint  stock  companies,  191. 

incorporated  by  charter  or  act,  to. 
inconvenience  of  unincorporated,  194. 
registration  act,  196. 
banking,  195,  198. 
letters-patent,  195. 
registry  office,  197,  205. 

liability  of  shareholders  in,  195,  198,  201,  202. 
bankruptcy  of,  199. 
with  limited  liability,  201. 

shares  in,  not  goods,  wares  or  merchandise,  209. 
powers  of  directors  of,  291. 

liability  of  provisional  committeemen  of  projected,  292. 
provisional  registration,  197. 
complete  registration,  197,  204. 
incorporation,  197,  204. 
acts,  objects  of,  199. 
winding  up  acts,  199,  207. 
act,  1862..  201. 

memorandum  of  association,  202,  203. 
articles  of  association,  204. 
shares  of  personal  estate,  205. 
register  of  members,  ib. 

name  of  limited  company  to  be  painted  up,  205. 
judgment  debts,  213. 
name  may  be  changed,  204. 
certificate  of  shares  of  stock,  205. 
register  evidence,  ib. 
register  of  mortgage,  206. 
special  resolution,  ib. 
liquidators,  208. 
contributories,  ib. 
Jtjdge's  order,  93. 
Judgment,  effect  of,  on  goods,  47. 

debt,  a  debt  of  record,  92. 
debtor  summons,  128,  129,  157. 
on  warrant  of  attorney  or  cognovit,  96. 
in  case  of  bankruptcy,  97,  144. 
carries  interest,  99. 

entitled  to  preference  in  administration,  ib. 
foreign,  ib. 

registry  of,  in  county  courts,  100. 
charge  of,  on  stock,  188. 
charge  of,  on  shares,  213. 

limitation  of  actions  for  money  secured  by,  371. 
Judicial  separation  of  husband  and  wife,  361. 

K. 

Kin,  next  of,  their  right  to  administration,  328. 

how  traced,  334. 
Kindred,  degrees  of,  how  traced,  ib. 

remarks  on  descent  to  distant,  338. 

L. 

Laborers'  Dwellings  Act,  1855  ..  212. 
Lands,  sale  of,  35. 

investment  of  settled  funds  in  purchase  of,  262. 


INDEX.  551 

Lapse,  323. 

Legacies,  no  action  at  law  for  pecuniary,  6. 
payment  of,  315. 
duty  on,  ib. 

no  duty  on,  to  husband,  wife  or  royal  family,  315,  316. 
to  infants,  ib, 
duty  on  annuities,  ib, 
specific,  316,  317. 
ademption  of,  317. 
demonstrative,  ib. 
general,  317. 
in  lieu  of  dower,  318. 
satisfaction  of  debts  by,  ib. 
satisfaction  of  portions  by,  319. 
to  charities,  320. 
to  illegitimate  children,  322. 
lapse  of,  323. 
to  children,  324. 
limitation  of  suits  for,  371. 
Legatee,  rights  of  residuary,  322. 
Lessor  to  have  benefit  of  informal  insurance,  162. 
Letters-patent. — See  Patent,  195,  281. 
Levari  facias,  writ  of,  49. 
Liability,  limitation  of,  by  letters-patent,  195. 
in  joint  stock  company,  201. 
joint,  282. 

joint  and  several,  283. 
of  partners  in  trade,  285. 
of  executor  carrying  on  trade,  289. 
of  executor  for  debts,  313. 
License,  letter  of,  115. 

to  use  patent,  221. 
Lien,  27. 

how  lost,  30,  41. 
of  solicitors,  29. 
of  vendor,  40. 

on  property  from  covenant  to  settle,  271,  272. 
Life  insurance,  159.  » 

no  estate  for,  in  personal  property  at  law,  236. 
bequest  of  term  for,  237. 
interests  in  equity  in  personalty,  238,  242. 
right  of  tenant  for,  as  to  bonus,  240. 
apportionment  of  income  of  tenant  for,  ib. 
Limitations,  Statute  of,  370. 

executors  or  administrators  not  bound  to  plead,  374. 
operation  of,  barred  by  charge  of  real  estate,  375. 
operation  of,  not  barred  by  charge  of  personal  estate,  ib. 
Limited  Liability  Act,  200,  202. 
Liquidated  damages,  67. 
Lithograph,  copyright  in,  230. 
Loan  societies,  211. 
London,  custom  of,  294,  335. 
Lords,  House  of,  a  superior  court  of  record,  91. 
Lost  article,  23. 
Lunatic,  43. 

transfer  of  stock  of,  186. 


552  INDEX. 

M. 

Maintenance,  crime  of,  5. 

of  children,  provisions  for,  254,  255. 
form  of  power  of,  in  a  settlement,  394. 
Maker  of  promissory  note,  80. 

Mala  fides  on  receipt  of  money  or  negotiable  securities,  365. 
prohibita,  84. 
in  se,  ib. 
Mandamus,  writ  of,  60. 
Manufactured  goods,  property  in,  37. 

contract  to  fumisli,  369. 
Manufactures,  patent  for  new,  216. 

copyright  in  designs  for  articles  of  manufacture,  233. 
Maps,  copyright  in,  229. 

Mariners,  wills  of,  and  administration  to,  295,  310. 
Martial  rights,  fraud  on  husband's,  353. 
Market  overt,  sale  of  chattels  in,  366. 

sale  of  stolen  goods  in,  ib. 
Marks,  trade,  234. 

Marriage,  a  valuable  consideration,  70,  272. 
restraints  on,  340. 
consent  to,  341. 
brokage,  ib. 

agreement  on,  must  be  in  writing,  74. 
settlement  on,  272,  342. 
dissolution  of,  360,  361. 
form  of  a  settlement  on,  388. 
Married  woman,  44. 

when  she  may  be  bankrupt,  125. 
executrix,  302. 
saving  of  disability  of,  370. 
See  Wife. 
Matrimonial  causes,  court  for,  360. 
Memorandum  in  writing,  what  is,  39,  77. 
Minor,  will  of,  now  invalid,  295. 

See  Children  and  Infant. 
Models^  copyright  in,  230. 
Money,  title  to,  365. 
Monopolies,  statute  of,  214. 
Mortgage  of  goods,  36,  46. 
of  ships,  56. 

of  ships,  certificate  of,  57. 
limitation  of  action  for  money  secured  by,  371. 
Mortis  causa,  donation,  300. 
Mortmain,  statute  of,  319. 

Mother,  right  of,  under  Statute  of  Distributions,  333. 
Musical  compositions,  copyright  in,  226. 


N. 

Navy,  wills  and  administration  to  seamen  in  the,  297,  311,  331. 
Necessaries,  husband  bound  to  supply  his  wife  with,  353,  361. 
Negotiable  securities,  title  to,  365. 

See  Bills  of  Exchange  and  Promissory  Notes. 
Nephews,  appointment  to,  250. 
Newspapers,  copyright  in,  233. 
Nest  of  kin,  right  of,  to  administration,  328. 


INDEX. 

Next  of  kin,  their  interest  vests  from  the  decease  of  the  intestate,  329. 

how  traced,  334. 
Note  of  a  contract,  what  is,  39,  77. 
Notes,  promissory,  80,  112. 

not  preferred  in  administration,  105. 
carry  interest,  107. 
title  to,  365. 
Notice  of  dishonor  of  bill  or  note,  82. 

to  debtor  on  assigning  the  debt,  112. 
to  one  partner  notice  to  all,  291. 
to  trustees  on  assigning  stock,  377. 
Nuncupative  will,  295. 

who  may  now  make,  296. 

0. 

Objects  of  a  contract,  lawful  or  unlawful,  84. 

Offer,  acceptance  of,  77. 

Officer,  bankrupt,  157. 

Official  assignees,  135. 

Order  and  disposition,  goods  in,  of  bankrupt,  50. 

choses  in  action  in,  of  bankrupt,  377. 
Ownership,  personal  property  the  subject  of  absolute,  7,  9. 


Paintings,  copyright  in,  231. 

Palatine  courts,  superior  courts  of  record,  91. 

Paraphernalia,  345. 

Parliament,  the  supreme  court,  91. 

Parol,  contracts,  68. 

Particular  lien,  27. 

Partners,  liability  of,  285. 

bankruptcy  of,  286. 
ostensible,  288. 
retiring,  ib. 
deceased,  ib. 

by  participation  in  profits,  289. 
liability  for  each  other's  acts,  290. 
notice  to  one  notice  to  all,  291. 
Part  owners  of  ships,  53. 
Patent,  213,  281. 

stamps  on,  215. 
term  of,  ib. 

for  new  manufactures  only,  216. 
first  inventor  of,  217,  218. 
specification  of,  217,  219. 
disclaimer,  220. 
register  of,  221. 

vesting  of,  in  more  than  twelve  persons,  ib. 
license  to  use,  ib. 
Scotch  and  Irish,  222. 
assignment  of,  ib. 
register  of  proprietors  of,  223. 
tenants  in  common  of,  281. 
form  of  letters-patent,  383. 
Pawn,  26,  46. 
Payee,  80. 


553 


554  INDEX. 

Payment  of  debts,  114. 
of  interest,  115. 
of  debts  in  bankruptcy,  143. 
Penalty,  67. 

Penalties,  limitation  of  actions  for,  373. 
Pendente  lite,  administrator,  830. 
Periodical  works,  copyright  in,  225. 
Perpetuities,  245. 

in  exercise  of  powers,  252. 
Personal  property,  the  subject  of  absolute  ownership,  7. 

annuity,  180. 
Petitioning  creditor  on  bankruptcy,  131. 

compounding  with,  133. 
Photographs,  copyright  in,  231. 
Pious  uses,  293. 
Plans,  copyright  in,  229. 
Pledge  of  goods,  26,  46. 

by  factor  or  agent,  368. 
Policy  of  insurance,  159. 
Portions,  appointment  of,  247. 

vesting  of,  charged  on  land,  254. 

satisfaction  of,  by  legacies,  319. 

Possession,  choses  in,  4. — See  Choses  in  Possession. 

goods  in,  of  bankrupt,  50. 
Possibility,  237. 

bow  alienable,  ih. 
Power  of  attorney,  111. 

construed  strictly,  368. 

decease  of  person  giving,  ih. 

payment  by  trustee,  executor,  or  administrator,  in  pursuance, 

of,  ib. 
form  of  a,  390. 
Powers,  22. 

of  appointment  amongst  children,  247,  249,  250. 
assignees  of  bankrupt  may  exercise,  246. 
frauds  on,  251. 

perpetuity  in  exercise  of,  252. 
to  appoint  new  trustees,  264. 
form  of  power  to  appoint  new  trustees,  399. 
given  to  married  women,  357. 
form  of,  of  appointment  amongst  children,  393. 
form  of,  given  to  a  wife,  394. 
Primogeniture,  remarks  on,  337. 
Prints,  copyright  in,  229. 
Probate,  Court  of,  305,  306,  309. 
of  wills,  305. 

acts  of  executor  before,  ib. 
in  which  court  to  be  taken  out,  306. 
in  principal  registry,  307. 
in  district  registry,  ih. 
evidence  required  on,  ib. 
in  common  ibrm,  308, 
per  testes,  ih. 
county  courts,  309. 
stamp  duties  on,  ih. 
when  exempt  from  stamp  duties,  310. 
of  seamen's  wills,  311. 
Profits  of  partnership,  participation  in,  289. 
Promise  implied,  68. 


INDEX. 


555 


Promise  insufficient  of  itself  to  form  a  contract,  71. 
Promissory  Notes,  80,  112. 

not  preferred  in  administration,  105. 
carry  interest,  108. 
title  to,  865. 
Proof  of  debts  in  bankruptcy,  136. 
Property,  real  and  personal,  3,  7. 
in  British  ships,  52. 
in  goods,  22. 
requisite  to  a  grant,  32. 
Protest,  81. 

Provisional  committee-man,  liability  of,  292. 
Public  officer  of  banking  company,  200. 
Publication,  immoral,  86. 

Purchase  of  land,  investment  of  settled  funds  in,  262. 

Purchaser  from  executor  not  bound  to  see  to  the  application  of  his  purchase- 
money,  312. 
protection  of,  in  bankruptcy,  142. 

R. 

Rasure  of  deeds,  83. 

Real  estate,  charge  of,  for  payment  of  debts,  375. 
Real  securities,  what  are,  258. 
in  Ireland,  ib. 
Receipt  by  surviving  joint  owner,  when  good,  280. 
by  one  executor  a  good  discharge,  303. 
by  executor  on  sale  a  good  discharge,  312. 
by  husband  of  wife's  chose  in  action,  346,  349. 
clause  in  settlements,  263. 

form  of  a,  398. 
Recognizance,  100. 

limitation  of  actions  on,  371. 
Record,  debts  of,  91. 
courts  of,  ib. 

of  proceedings  in  bankruptcy,  147. 
Reference  to  arbitration,  166. 
revocation  of,  168. 
by  assignees  in  bankruptcy,  293. 
Registration  of  bill  of  sale,  46. 
of  ships,  52. 
certificate  of,  54. 
of  transfers  of  ships,  55. 
of  deeds  of  arrangement,  118,  120. 
of  joint-stock  companies,  197. 
of  banking  companies-,  204. 
of  copyrights,  227. 
of  sculptures,  230. 
in  court  of  probate,  307. 
Reimbursement  of  trustees,  263,  264. 
Release  by  one  joint  obligee  bars  all,  276. 

of  one  joint  debtor  discharges  all,  282. 
of  one  joint  and  several  debtor,  284. 
by  husband  of  wife's  reversionary  chose  in  action,  352. 
of  money  charged  on  real  estate,  ib. 
Rent,  arrears  of,  101. 

payment  of,  in  bankruptcy,  144. 
limitation  of  actions  for,  372. 
Renunciation  of  office  of  executor,  303. 


656  INDEX. 

Replevin,  action  of,  3. 

limitation  of  action  of,  370. 
Reputed  ownership,  47,  48. 

of  chose  in  action,  377. 
Residuary,  legatee,  rights  of,  322. 
Residue,  former  right  of  executors  to,  324. 
right  of  next  of  kin  to,  325. 
form  of  assignment  of  a  share  in,  390. 
Respondentia,  163. 
Restraint  on  anticipation,  356. 

on  marriage,  340. 
Retainer  by  executor  of  his  own  debt,  305. 

by  administrator  of  his  own  debt,  329. 
Reversionary  chose  in  action  of  wife,  assignment  of,  351. 
Reviews,  copyright  in,  225. 
Revocation  of  the  trusts  of  a  settlement,  273. 

of  a  will,  298. 
Royal  family,  no  duty  on  legacies  to,  316. 
Rule  in  Slielley^s  Case,  243. 


S. 

Sale  of  goods,  36 — 43,  77. 

of  goods  in  market  overt,  366. 
of  goods  by  factor  or  agent,  368. 

of  lands,  direction  for,  converts  them  into  money  in  equity,  262. 
of  ships,  certificate  of,  57. 
Salvage,  28. 
Satisfaction  of  debts  by  legacies,  318. 

of  portions  by  legacies,  319. 
Savings  banks,  211. 
Scire  facias  to  revive  a  judgment,  94. 
Scotch  patent,  222. 

Sculptures,  copyright  in,  230.  • 

Seamen,  wills  of,  297. 

probate  of  wills  of,  311. 
administration  to  effects  of,  331. 
Securities  of  creditor,  how  affected  by  composition,  116. 
for  money  won  at  play,  88. 
proof  in  bankruptcy  by  creditors  holding,  139. 
government,  what  are,  258. 
real,  what  are,  ib. 
real,  in  Ireland,  ib. 
stolen,  367. 
Separate  use,  trust  for  woman's  separate,  364. 

form  of  a  trust  for,  392. 
Separation  of  husband  and  wife,  357. 
Sequestration  of  profits  of  bankrupt,  158. 
Settlement  of  personal  property,  236. 
wife's  equity  for  a,  348. 
covenant  for,  of  wife's  future  property,  270. 
covenant  for,  of  husband's  property,  271. 
voluntary,  void  as  against  creditors,  272. 
voluntary,  binding  on  settlor,  273. 
for  settlor's  own  benefit  revocable,  ib. 
voluntary,  of  personal  estate,  not  void  against  subsequent  purchasers, 

stamps  on,  ib. 


INDEX.  557 

Settlement  on  marriage,  272. 
by  infants,  342. 

form  of  marriage  settlement  of  residuary  personal  estate  and  stock  in 
the  funds,  380.  _ 
Shares  in  joint-stock  companies,  191,  205. 

sale  of,  209, 
transfer  of,  379. 
title  to,  ib. 
Shelley's  case,  rule  in,  243. 
Ships,  52. 

register,  no  trusts  entered  on,  53. 
transfer  of  property  in,  55. 

equities  may  be  enforced  against  owner  and  mortgagees,  53. 
mortgage  of,  56. 

no  stamp  duty  on  transfer  of,  57. 
certificate  of  registry,  54. 
certificate  of  mortgage  of,  56. 
insurance  of,  163. 
Shops  in  the  city  of  Loudon  are  market  overt,  366. 
Signature  to  contracts,  77. 
Simple  contract  debts,  104. 

limitation  of  actions  for,  373. 
Sisters,  right  of,  under  Statute  of  Distributions,  333. 
Soldiers,  wills  of,  296,  297. 

probate  of  wills  of,  311. 
administration  to  effects  of,  331. 
Solicitor,  lien  of,  29. 

not  liable  as  such  to  bankrupt  laws,  125. 
cannot  charge  for  professional  trouble  as  trustee,  267. 
Specialty  debts,  101. 

limitation  of  actions  for,  371,  372. 
Specific  legacy,  316. 
Specification  of  patent,  219. 

Stamp  duty,  none  on  agreement  for  sale  of  goods,  40. 
none  on  transfer  of  ships,  57. 
on  agreements,  74. 
on  bills  and  notes,  83. 
on  warrants  of  attorney,  94. 
on  bonds,  104. 
on  covenants,  ib. 
on  contract  notes,  186. 
on  policies  of  life  insurance,  161. 
on  awards,  179. 
on  letters-patent,  215. 
on  settlements,  274. 
on  probates,  309. 
on  legacies,  315. 
on  letters  of  administration,  331. 
on  shares  of  intestate's  estates,  336. 
Statute  of  frauds. — See  statute  29  Car.  II,  c.  3. 
Statutes  cited. 

13  Edw.  I,  c.  18  (elegit),  48. 
13  Edw.  I,  c.  19  (intestates),  327. 
13  Edw.  I,  c.  45  [scire  facias),  94. 
4  Edw.  Ill,  c.  7  (action  by  executors),  61. 
15  Edw.  Ill,  c.  5  (executors),  ib. 
31  Edw.  Ill,  c.  11  (administrator),  327. 
21  Hen.  VIII,  c.  5  (next  of  kin),  328. 
27  Hen.  VIII,  c.  10  (Statute  of  Uses),  11,  71,  239. 


558  INDEX. 

* 

Statutes  cited. 

32  Hen.  VIII,  c.  37  (arrears  of  rent),  347. 

37  Hen   YIII,  c.  9  (interest),  5,  108. 

2  &  3  Phil.  &  Mary,  c.  7  (stolen  horses),  3G7. 

13  Eliz.  c.  5  (gifts  for  defrauding  creditors),  45,  49,  272. 

13  Eliz.  c.  7  (bankrupts),  127,  133. 

13  Eliz.  c.  20  (charges  on  benefices),  87. 
27  Eliz.  c.  4  (voluntary  settlements),  274. 
31  Eliz.  c.  12  (stolen  horses),  368. 

21  Jac.  I,  c.  3  (patents),  214,  215. 

21  Jac.  I,  c.  16  (Statute  of  Limitations),  72,  78,  370,  373. 

22  &  23  Car.  II,  c.  10  (distribution),  329,  332,  333. 
29  Car.  II,  c.  3  (Statute  of  Frauds),  ss.  1,  2  . .  33. 

s.  4  (contract  in  writing),  40,  7.3,  272,  314. 

s.  5  (will  of  real  estate),  296. 

s.  16  (writ  0^  fieri  facias),  48. 

s.  17  (sale  of  goods),  37,  38,  186,  209. 

ss.  19-21  (nuncupative  testament),  295. 

s.  22  (revocation  of  will  of  personal  estate),  296. 

s.  23  (soldiei's  and  mariners),  297. 

s.  25  (husband),  333,  347. 

1  Jac.  II,  c.  17  (distribution),  332. 

4  &  5  Will.  &  Mary,  c.  2  (custom  of  York),  294. 

7  &  8  Will.  Ill,  c.  38  (custom  of  Wales),  ib. 

8  &  9  Will.  Ill,  c.  11  (judgments),  104. 

9  &  10  Will.  Ill,  c.  15  (arbitration),  167,  174,  175. 

2  &  3  Anne,  c.  5  (custom  of  York),  294. 

3  &  4  Anne,  c.  9  (promissory  notes),  5,  112. 

4  Anne,  c.  16  (nuncupative  testaments),  295,  296. 
4  &  5  Anne,  c.  16  (bond  debts),  103. 

7  Anne,  c.  25  (promissory  notes),  5,  112. 

8  Anne,  c.  19  (copyright),  224. 

9  Anne,  c.  14  (money  won  at  play),  88. 
12  Anne,  stat.  2,  c.  16  (usury),  89. 

I  Geo.  I,  stat.  2,  c.  19  (stock),  183,  184,  190. 

II  Geo.  I,  c.  18  (custom  of  London),  294. 

7  Geo.  II,  c.  8  (stockjobbing),  88,  185. 

8  Geo.  II,  c.  13  (copyright  in  prints,  &c.),  229. 

9  Geo.  II,  c.  36  (mortmain),  319. 

19  Geo.  II,  c.  37  (ship  insurance),  160,  163. 
7  Geo.  Ill,  c.  38  (copyright  in  prints),  229. 

14  Geo.  Ill,  c.  48  (life  insurance),  160. 

14  Geo.  Ill,  c.  78  (Metropolitan  Building  Act),  162. 
17  Geo.  Ill,  c.  30  (bills  of  exchange),  80. 
17  Geo.  Ill,  c.  57  (copyright  in  prints,  &c.),  229. 
36  Geo.  Ill,  c.  52  (legacy  duty),  301,  315,  316. 

38  Geo.  Ill,  c.  71  (copyright  in  sculptures,  &c.),  230. 

38  Geo.  Ill,  c.  87  (infant  and  absent  executor),  302,  330. 

39  &  40  Geo.  Ill,  c.  98  (accumulations),  245. 
41  Geo.  Ill,  c.  107  (copyright),  224. 

46  Geo.  Ill,  c.  135  (bankruptcy),  141. 
48  Geo.  Ill,  c.  88  (bills  of  exchange),  80. 

48  Geo.  Ill,  c  123  (discharge  of  small  debtors),  155. 

49  Geo.  Ill,  c.  121  (bankruptcy),  141. 

54  Geo.  Ill,  c.  56  (copyright  in  sculptures,  &c,),  230. 

54  Geo.  Ill,  c.  156  (copyright),  224. 

55.  Geo.  Ill,  c.  184  (stamps),  40,  309,  310,  315,  331,  336. 

56  Geo.  Ill,  c.  60  (unclaimed  dividends),  376. 

56  Geo.  Ill,  c.  13.7  (bankruptcy),  141. 


INDEX.  559 

Statutes  cited. 

3  Geo.  IV,  c.  39  (warrants  of  attorney  and  cognovits),  93,  96. 

4  Geo.  IV,  c.  83  (factors  and  agents),  368. 

6  Geo,  IV,  c.  16  (bankruptcy),  50,  73,  97,  118,  133,  140,  141,  146,  246,  273, 
282,  287. 

6  Geo.  IV,  c.  94  (factors  and  agents),  368. 

7  Geo.  IV,  c.  6  (bills  and  notes),  80. 

7  Geo.  IV,  c.  46  (banking  companies),  195. 

7  Geo.  IV,  c.  57  (insolvency),  149. 

7  &8  Geo.  IV,  c.  29  (stolen  goods),  367. 

9  Geo.  IV,  c.  14  (written  contracts),  38,  73,  75,  77,  78,  79,  114,  283,  373. 

9  Geo.  IV,  c.  32  (felony),  44. 

9  Geo.  IV,  c.  92  (savings  banks),  310. 

10  Geo.  IV,  c.  56  (friendly  societies),  210. 

11  Geo.  IV  &  1  Will.  IV,  c.  20  (seamen's  wills),  297,  311. 

0.  38  (insolvency),  149. 
c.  40  (executors  trustees  of  residue),  324. 
c.  46  (illusory  appointments),  248. 
c.  65  (infants,  idiots,  and  lunatics),  186. 
1  Will.  IV,  c.  7  (judgments),  98. 

1  &  2  Will.  IV,  c.  32  (game  act),  20,  21. 

0.  56  (bankruptcy  court),  50,  114,  124,  133,  134. 

2  &  3  Will.  IV,  c.  40  (seamen's  wills),  311. 

3  &  4  Will.  IV,  c.  15  (copyright  in  dramatic  works),  226. 

c.  27  (limitations),  370,  371,  372,  373. 

c.  42,  s.  2  (actions  by  and  against  executors),  62,  63. 

s.  3  (limitation),  371,  373,  374. 

s.  4  (disabilities),  371,  372,  373,  374. 

s.  5  (acknowledgment),  372. 

ss.  28,  29  (interest),  108. 

s.  39  (arbitration),  168,  171. 

s.  40  (witnesses  on  arbitration),  169. 
c.  47  (bankruptcy),  124, 
c.  74  (fines  and  recoveries),  350,  352. 
c.  98  (bills  and  notes),  89. 
c.  105  (dower),  318. 

4  &  5  Will.  IV,  c.  22  (apportionment  of  income),  240,  241. 

c.  25  (seamen's  pay),  311. 

c.  29  (real  securities  in  Ireland),  258,  259. 

c.  40  (friendly  societies),  210. 

c.  94  (public  officer),  195. 

5  &  6  Will.  IV,  c.  41  (securities  for  illegal  consideration),  85,  88,  89. 

c.  83  (patents),  216,  21^,  220. 

6  &  7  Will.  IV,  c.  32  (building  societies),  211,  212. 

c.  59  (copyright  in  prints,  &c.),  229. 
c.  76  (newspapers),  2S3. 

7  Will.  IV  &  1  Vict.  c.  26  (wills%  190,  243,  294,  295,  296,  297,  298,  307,  308, 

323,  324. 
c.  73  (public  officer),  195. 
1  &  2  Vict.  c.  96  (banking  companies),  ib. 

c.  110,  ss.  9,  10  (execution  of  warrants  of  attorney),  95,  124,  149. 
8.  12  (seizure  of  notes  and  securities),  113,  272. 
s.  13  (judgments  a  charge  on  real  estate),  144. 
ss.  14,  15  (charging  stock),  188,  189,  213,  272. 
s.  16  (imprisonment),  100. 
s.  17  (interest  on  judgment  debt),  99. 
s.  22  (judgment  of  inferior  courts),  100. 
s.  35  (discharge),  150. 
8.  36  (petition  by  creditor),  150. 


660  INDEX. 

Statutes  cited. 

1  &  2  Vict.  c.  110,  s.  37  (vesting  order),  151. 

s.  45  (assignees),  ib. 

a.  47  (sale),  ib. 

s.  48  (mortgage),  ib. 

s.  55  (benefice),  ib. 

8.  56  (officer),  ib. 

s.  59  (voluntary  preference),  152. 

s.  62  (dividend),  151. 

s.  69  (schedule),  152. 

ss.  70,  71,  72  (examination),  ib. 

s.  75  (discharge),  152. 

ss.  76,  77,  78  (postponement  of  discharge),  153. 

s.  79  (costs),  ib. 

s.  80  (annuities),  ib. 

ss.  87,  88,  89  (future  execution),  ib. 

ss.  90,  91  (freedom  from  execution),  ib. 

2  &  3  Vict.  c.  11  (bankruptcy),  124,  141. 

c.  29    bankruptcy),  98,  124,  141. 
c,  37  (usury),  89. 

c.  54  (custody  of  infants),  359,  360. 
c.  67  (patents),  216. 

3  &  4  Vict.  c.  73  (friendly  societies),  210. 

c.  82  (stock,  judgments),  188,  272. 

c.  110  (loan  societies),  211.  • 

0.  Ill  (banking  companies),  195. 
5  Vict.  c.  5  (Court  of  Exchequer  in  equity),  187. 

5  &  6  Vict.  c.  39  (factors  and  agents),  368. 

c.  45  (copyright),  224,  225,  226,  227,  228. 

c.  79  (stamps  on  probates),  309. 

0.  85  (banking  companies),  195. 

c.  100  (copyright  in  designs),  234.- 

c.  116  (insolvency),  153,  154,  155. 

c.  122  (bankruptcy),  50,  72,  124,  134,  280,  282,  287. 

6  &  7  Vict.  c.  65  (copyright  in  designs),  234. 

c.  66  (index  to  warrants  of  attorney),  96. 

7  &  8  Vict.  c.  12  (international  copyright),  231,  232. 

c.  32  (bank  notes),  80. 

c.  66  (aliens),  44. 

0.  69  (patents),  216,  220. 

c.  70  (arrangements  between  debtors  and  creditors),  122. 

c.  76  (transfer  of  property),  237. 

c.  96  (insolvency),  100,  124,  154,  155. 

c.  110  (joint-stock  companies),  191,  196,  197,  198,  199. 

0.  Ill  (bankruptcy  of  joint-stock  companies),  199. 

c.  113  (banking  companies),  191,  198,  199. 

8  &  9  Vict.  c.  16  (Companies  Clauses  Consolidation  Act),  192,  193,  194. 

c.  18  (lands  clauses  consolidation),  192. 

c.  20  (railways  clauses  consolidation),  ib, 

c.  48  (bankrupt's  oath),  124. 

c.  62  (unclaimed  dividends),  376,  377. 

c.  76  (legacy  duty),  301,  315. 

c.  93  (copyright  in  colonies),  228. 

c.  97  (stock),  187,  190. 

c.  106  (real  property),  33,  237. 

c.  109  (gaming  and  wagering),  88. 

c.  127  (execution),  50,  100. 

9  &  10  Vict.  c.  27  (friendly  societies),  210. 

c.  93  (death  by  accident  compensation),  62,  63. 


INDEX.  561 

Statutes  citGci  • 

9  &  10  Vict.  c.  95  (small  debts),  6,  92,  100. 

10  &  11  Vict.  c.  14  (markets  clauses  consolidation),  192. 

c.  15  (gas  clauses  consolidation),  ib. 

c.  17  (water  clauses  consolidation),  ib. 

c.  27  (harbors  clauses  consolidation),  ib. 

c.  34  (paving  clauses  consolidation),  ib. 

c.  65  (cemeteries  clauses  consolidation),  ib. 

c.  78  (joint  stock  companies),  196,  197.  198. 

c.  83  (aliens),  44. 

c.  95  (copyright  in  colonies),  228. 

c.  96  (trust  funds),  270. 

c.  102  (bankruptcy  and  insolvency),  124,  150,  154,  155. 

11  &  12  Vict.  c.  29  (hares),  20. 

0.45  (Winding-up  Act),  200. 
c.  86  (bankruptcy),  124. 

12  &  13  Vict.  c.  67  (sequestration),  151. 

c.  74  (trustees'  relief),  270. 
c.  110  (small  debts),  92. 
c.  106  (bankruptcy),  124,  146. 
^  s.  6  (court),  91,  134,  147. 

s.  11  (commissioners),  134. 

s.  12  (appeal),  144. 

s.  66  (who  traders),  125. 

s.  67  (acts  of  bankruptcy),  126. 

s.  68  (composition  deeds),  118. 

s.  71  (compounding  with  petitioning  creditor),  133. 

ss.  78,  79  (affidavit  of  debt),  130.    ' 

ss.  80-84  (admission  of  debt),  130,  131. 

s.  88  (time),  131. 

s.  89  (petition),  127. 

s.  101  (adjudication),  134. 

s.  104  (adjudication),  ib. 

s.  115  (concerted  act  of  bankruptcy),  128. 

s.  125  (order  and  disposition),  47,  50. 

s.  126  (voluntary  gifts),  273. 

s.  129  (one  year's  rent),  144. 

s.  133  (executions,  &c.),  97,  142. 

s.  134  (fraudulent  preference),  142. 

s.  ISS  (warrants  of  attorney),  97. 

s.  136  (warrants  of  attorney),  93,  96. 

s.  137  (warrants  of  attorney),  96. 

s.  140  (joint  creditors),  287. 

s.  141  (assignees),  114,  140,  147. 
•  s.  142  (assignees),  140,  147. 

s.  147  (powers),  246. 

s.  152  (joint  debts),  280. 

s.  153  (suits),  293. 

s.  154  (arbitration),  i6. 

s.  168  (clerk's  pay),  144. 

s.  169  (laborers'  wages),  ib, 

ss.  171-183  (proof),  136,  137,  138. 

8.  184  (execution),  97,  98. 

s.  197  (surplus),  144. 

s.  198  (certificate),  146. 

s.  199  (certificate),  ib. 

s.  200  (certificate),  146,  282. 

s.  204  (promise  to  p3.y  barred  debt),  72. 

s.  224  (arrangements  by  deed),  118. 

36 


562  INDEX. 

Statutes  cited. 

12  &  13  Vict.  c.  106,  s.  233  (gazette),  135. 

s.  277  (alien,  &c.),  125. 
c.  108  (winding-up  amendment),  200. 

13  &  14  Vict.  c.  21  (interpretation),  172. 

c.  35  (Court  of  Chancery),  313,  329. 

c.  60  (Trustee  Act,  1850),  266,  267. 

0.  61  (small  debts),  6,  92. 

c.  83  (railways),  200. 

c.  97  (stamps),  94,  103,  275. 

c.  104  (Designs  Act,  1850),  230,  231,  234. 

c.  115  (friendly  societies),  210. 

14  &  15  Vict.  0.  8  (designs),  234. 

c.  25  (agricultural  fixtures,  emblements),  14,  18. 
c.  99  (evidence),  169. 

15  &  16  Vict.  c.  3  (administration  for  crown),  336. 

c.  6  (designs),  234. 

c.  12  (international  copyright),  230,  232,  233. 
c.  24  (wills  amendment),  296. 
c.  31  (industrial  societies),  211. 
c.  54  (small  debts),  92,  100. 
c.  55  (trustees),  266,  267. 

c.  65  (friendly  societies),  210.  Jj 

c.  76  (common  law  procedure),  66,  68,  94,  114,  303.  fl 

c.  83  (patent  law  amendment),  214,  216,  217,  219,  220,  221,  222,  " 

224. 

16  &  17  Vict.  c.  5  (stamps  on  patents),  215,  222,  386. 

c.  51  (succession  duty),  275,  277,  316. 

c.  59  (stamps),  161,  194. 

c.  63  (stamps  on  life  policies),  161. 

c.  70  (lunatics),  186,  187. 

c.  107  (copyright),  228. 

c.  115  (patents),  216,  217,  218,  219. 

c.  123  (friendly  societies),  210. 

17  &  18  Vict.  c.  16  (county  courts  jurisdiction),  92,  155. 

c.  25  (industrial  and  provident  societies),  211. 

c.  36  (bills  of  sale),  47. 

c.  83  (bills  of  exchange  aad  promissory  notes),  83. 

c.  90  (repeal  of  usury  laws),  89. 

c.  101  (friendly  societies),  210. 

0.  104  (Merchant  Shipping  Act),  29,  52,  53,  55,  56,  57,  58,  298, 

311. 
c.  119  (bankruptcy),  135. 
0.  120  (Merchant  Shipping  Repeal  Act),  52. 
c.  125  (Common  Law  Procedure  Act,  1854),  4. 

S3.  3,  6,  7  (arbitration),  167. 

ss.  5,  9  (award),  174,  176. 

s.  11  (proceedings  at  law  may  be  stayed  by  arbitration), 
166. 

s.  12  (appointment  of  arbitrator  by  a  judge),  169, 177. 

s.  13  (death  of  arbitrator),  170. 

s.  14  (appointment  of  umpire),  176. 

s.  15  (time  for  making  award),  172,  177. 

s.  16  (possession  of  lands),  178. 

s.  17  (submission  to  arbitration  by  consent  may  be  made 
a  rule  of  court),  1  68. 

s.  60  (court  may  examine  judgment  debtor  as  to  debts 
owing  to  him),  113. 


INDEX.  563 

17  &  18  Vict.  c.  125,  s.  61,  65  (garnishee),  113. 

ss.  68,  69  (writ  of  mandamus),  60. 

s.  78  (order  for  restitution  of  chattels),  4. 

ss.  79-82  (writ  of  injunction),  60,  61. 
•      18  &  19  Vict.  c.  15,  s.  7  (judgments),  100. 

c.  43  (marriage  settlement  of  infants),  342. 

0.  63  (friendly  societies),  210. 

0.  67  (bills  of  exchange  and  promissory  notes),  83. 

c.  91  (merchant  shipping  amendment),  29,  62,  55. 

c.  Ill  (bills  of  lading),  35,  59. 

c.  122  (lire  insurance),  162. 

c.  132  (laborers'  dwellings),  212. 

c.  133  (Limited  Liability  Act),  200. 

19  &  20  Vict.  c.  40  (provident  societies),  211. 

c.  47  (joint  stock  companies),  200. 

c.  94  (administration),  336. 

c.  97,  s.  1  (writ  of  execution,  bona  fide  purchaser),  49,  366. 

s.  2  (restitution  of  chattels),  4. 

s.  3  (consideration  for  promise),  75. 

s.  5  (surety),  101>,  110. 

s.  10  (infancy,  coverture,  lunacy),  370,  371,  373. 

s.  11  (joint  debtor,  absence  beyond  seas),  283,  372. 

s.  12  (absent  debtors),  283,  370,  373. 

s.  13  (debts,  limitations),  73,  78,  79,  373. 

s.  14  (co-contractor's  interest),  78. 
c.  108  (Small  Debts  Act),  6,  92. 

20  &  21  Vict.  c.  14  (winding-up  acts),  191,  200,  201. 

0.  49  (joint  stock  companies),  200,  201. 

c.  54  (fraudulent  trustees,  bankers),  270. 

c.  57  (disposition  of  wife's  reversionary  interest),  350,  363. 

c.  77  (Court  of  Probate  Act,  1857),  305,  328. 

s.  3  (lords  of  manors),  306. 

s.  23  (court  of  record),  91. 

s.  29  (practice),  308. 

ss.  46,  47  (district  registry),  307. 

s.  59  (abode  of  testator),  ib. 

s.  70  (administrator  pendente  lite),  330. 

s.  71  (receiver),  331. 

ss.  72,  74  (administrator),  330. 

s.  73  (administration),  331. 

s.  79  (executor),  304. 

s.  86  (voidable  probates),  307. 
c.  78  (Joint  Stock  Companies  Winding-up),  200. 
c.  79  (probates),  309. 
c.  80  (Joint  Stock  Companies),  201. 
c.  85  (Court  for  Divorce  and  Matrimonial  Causes),  360. 

s.  7  (decree  for  judicial  separation),  ih. 

s.  21  (protection  order),  ib. 

ss.  24,  32  (alimony),  ib. 

s.  25  (wife  feme  sole),  361. 

s.  26  (wife's  necessaries,  joint  power),  361. 

s.  35  (custody  and  maintenance  of  children),  ib. 

s.  45  (children's  settlement),  ib. 

s.  57  (petition),  327. 

21  &  22  Vict.  c.  27  (Court  of  Chancery),  61. 

c.  56  (probates),  309. 

c.  60  (joint  stock  companies),  200,  201. 

0.  70  (copyright),  234. 


564 


INDEX. 


Statutes  cited. 

21  &  22  Vict.  c.  74  (small  debts),  92. 

c.  91  (joint  stock  companies),  200,  201. 

c.  95  (executors),  304,  305,  309,  328,  329,  331,  332. 

c.  101  (Court  for  Divorce),  210. 

c.  108  (wife's  property),  360,  361. 

22  Vict.  c.  13  (patents,  munitions  of  war),  219,  220. 

22  &  23  Vict.  c.  35,  ss.  4,  6  (fire  insurance),  162. 

s.  7  (informal  insurance),  163. 

s.  8  (purchaser),  ib. 

s.  12  (powers),  247. 

s.  21  (assignment  to  self),  380. 

s.  23  (payment  of  money  by  trustees),  264. 

s.  24  (concealment  of  deeds),  380. 

s.  26  (power  of  attorney),  368. 

ss.  27,  28,  29  (administration),  314,  329. 

s.  30  (trustees  may  apply  for  opinion  of  judge),  270. 

s.  31  (trustees),  269. 

s.  32  (investments),  259. 
c.  36  (stamps  on  probates),  309. 
c.  61  (divorce  amendment),  360,  361,  362. 

23  Vict.  c.  5  (Indian  government  notes),  310. 

c.  15  (probate),  35,  83,  310. 
c.  28  (stock-jobbing),  88. 

23  &  24  Vict.  c.  38,  ss.  3,  4  (registered  judgment),  99. 

s.  8  (concealment  of  deeds),  380. 
s.  9  (trustees  may  apply  for  opinion  of  judge),  270. 
s.  10  (investments),  260. 
s.  11  (investments),  ib. 
8.  12  (investments),  259. 
s.  14  (accounts  in  chancery),  31.3,  329. 
c.  58  (friendly  societies),  210. 
c.  83  (infants'  settlements,  Ireland),  342. 
c.  106  (railways),  192. 
c.  Ill  (stamps),  35,  80,  83,  161,  186. 

0.  126,  s.  13  (Common  Law  Procedure  Act,  1860,  bill  of  sale),  50. 
ss.  28-31  (garnishee),  114. 
s.  32  (costs),  61. 
c.  144  (divorce),  362. 

c.  145,  s.  25  (investment  of  trust  moneys),  261. 
s.  26  fmaintenance),  256. 
s.  27  (appointment  of  trustees),  265. 
s.  29  (receipt  of  trustees),  264. 
s.  30  (executors),  313. 
s.  34  (date  of  operation),  256,  261. 
c.  147  (creditors),  123. 

24  Vict.  c.  3  (transfer  of  stock),  184,  376. 

c.  10  (Court  of  Admiralty),  29,  91. 
c.  14  (post-office  savings  banks),  211. 
24  &  25  Vict.  c.  73  (designs  for  articles  of  manufacture),  234. 

c.  91,  s.  30  (stamps  on  appointment  of  new  trustees),  266. 

s.  34  (fixtures,  bills  of  sale),  47. 
0.  92,  s.  3  (probate,  voluntary  debts),  311. 
c.  114  (domicile),  298,  299. 
c.  121  (domicile),  299,  300. 
c.  134  (Bankruptcy  Act,  1861),  124,  155. 

s.  2  (reduction  of  London  commissioners),  134. 
s.  3  (jurisdiction  of  county  courts),  ib. 
s.  4  (county  courts)  ib. 


INDEX.  565 

Statutes  cited. 

24  &  25  Vict.c.  134,  ss.  19-27  (abolition  of  insolvent  court),  155. 
8.  68  (appeal),  144. 

s.  69  (all  debtors  subject  to  bankrupt  laws),  155,  156. 
s.  71  (acts  of  bankruptcy),  126,  127,  157. 
s.  72  (declaration  of  insolvency),  127,  157. 
s.  73  (execution),  47,  98,  107,  128. 
s.  74  (sale  of  goods  by  auction),  48. 
8.  75  (insolvency  in  colonies),  128,  157. 
8.  76  (judgment  debtor  summons),  ib. 
s.  77  (decrees  and  orders),  129,  157. 
8.  79  (service  of  summons),  129. 
s.  82  (examination  of  debtor),  ib, 
a.  83  (summons,  adjudication  of  bankruptcy),  ib. 
;,  s.  84  (adjudication),  130,  134. 

8.  86  (petition  by  debtor),  127. 
s.  87  (petition),  132.  • 
s.  89  (petitioning  creditor's  debt),  ib. 
s.  93  (tiling  statement  of  liabilities  by  debtor),  128. 
8.  96  (powers  for  court  to  adjudicate),  132. 
8.  97  (computation  of  debts),  133. 
ss.  98-107  (pauper  and  lunatic  prisoners),  157. 
s.  108  (official  assignees),  50. 
s.  109  (proof  of  debts),  136. 
s.  110  (power  to  suspend  proceedings),  145. 
s.  116  (creditors'  assignees),  135,  140. 
s.  417  (assignees),  50,  135. 
s.  118  (official  assignee),  135. 
s.  128  (debts  under  £10),  136. 
s.  132  (mortgagee),  140. 
s.  133  (mortgage  by  assignees),  143. 
s.  134  (half-pay,  &c.),  158. 
s.  135  (sequestration  of  benefice),  ib. 
s.  137  (power  to  sell  debts,  goodwill,  &c.),  143. 
s.  144  (proof  of  debts),  136. 
8.  146  (proof  of  debts),  ib. 
8.  149  (costs),  138. 
s.  150  (apportionment  of  rent),  ib. 
s.  151  (debts  payable  by  instalments),  ib. 
s.  152  (dividends  of  joint  and  separate  estates),  288. 
8.  153  (damages),  139. 
s.  154  (policies  of  insurance),  ib. 
8.  155  (proof  of  debt),  ib. 
s.  157  (certificates),  146. 
8.  159  (after  acquired  property),  147. 
8.  161  (order  of  discharge),  ib. 
s.  163  (discharge),  282. 
s.  164  (barred  debt),  72. 
8.  174  (allowance  to  bankrupt),  143. 
8.  177  (joint  estates),  288. 
8.  185  (power  to  wind  up  by  deed),  145. 
8.  1*^6  (power  to  wind  up  by  deed),  ib. 
8.  187  (registration  of  deed),  146. 
8.  192  (trust  deeds  for  creditors),  120. 
8.  193  (registration),  ib. 
s.  194  (registration),  116. 
8.  195  (stamps),  120. 
s.  196  (registration),  117. 
8.  197  (jurisdiction  after  registration),  120. 


566 


INDEX. 


Statutes  cited. 

24  &  25  Vict.  0. 134,  s.  198  (protection),  121. 

s.  200  (assent  of  creditors),  112. 

s.  203  (evidence),  148. 

s.  204  (signature  of  commissioner  or  registrar),  ib. 

s.  232  (acts. construed  together),  51. 

25  &  26  Vict.  c.  63  (Merchant  Shipping  Act  Amendment  Acts,  1862),  29,  52. 

s.  3  (equities  against  owners  and  mortgagees  of  ships),  54. 

s.  45  (certificate  of  registry),  ib, 

ss.  47,  48,  53  (loss  of  certificate),  ih. 

s.  50  (certificate  of  registrj^),  55. 

s.  55  (transfer  of  registered  ships),  ih. 

ss.  66-78  (lien  for  freight),  29-59. 
c.  68  (copyright  works  of  art),  231. 
c.  81  (divorce),  362. 

c.  86,  ss.  12-14  (lunatics  or  idiots),  191. 
c.  87  (industriarand  provident  societies),  211. 
c.  88  (fraudulent  marking  of  merchandise),  235,  370. 
c.  89  (Companies  Act,  1862),  191,  196,  198,  200,  201. 

s,  4  (partners),  201. 

s.  6  (memorandum  of  association),  ih. 

s.  7  (liability  may  be  limited),  202. 

s.  8  (shares),  ih. 

s.  9  (guarantee),  203. 

s.  10  (memorandum  of  unlimited  company),  ih. 

s.  11  (effect  of  memorandum),  ih. 

s.  12  (powers  to  alter  memorSndura),  204. 

s.  13  (change  of  name),  ib, 

s.  14,  15  (articles  of  association),  ih. 

s.  16  (stamp  on  articles),  ib. 

s.  17  (registration  of  articles),  ib. 

s.  18  (certificate  of  incorporation),  ih. 

8.  21  (license  to  hold  land),  205. 

s.  22  (shares  personal  estate),  ih. 
•  s.  25  (register),  ib. 

s.  26  (annual  list  of  members),  ih. 

s.  30  (register  of  members),  ib. 

s.  31  (certificate  of  shares),  ib. 

s.  37  (register,  evidence),  ib. 

s.  38  (liability  of  contributories),  208. 

s.  39  (registered  ofiQce),  205. 

s.  41  (name  of  limited  company),  206. 

s.  43  (mortgages  and  changes),  ib. 

8.  44  (annual  statement),  ib, 

s.  47  (bills  and  notes),  292. 

s.  50  (special  resolution),  ih. 

s.  51  (special  resolution),  207. 

s.  53  (registry  of  special  resolution),  ih. 

8.  54  (copies  of  ditto),  ih. 

s.  74  (contributories),  208. 

8S.  79-128  (winding  up  by  the  court),  207,  208. 

ss.  92-97,  133-144  (official  liquidators),  ib. 

ss.  128-146  (voluntary  winding  up),  207. 

ss.  147-152  (supervision  of  court),  ih. 

s.  182  (banking  companies),  201. 

26  Vict.  c.  14  (post  office  savings  banks),  211. 

c.  28  (stock  certificates),  185. 
26  &  27  Vict.  c.  41  (lien  of  innkeepers),  28. 
c.  56  (loan  societies),  211. 


INDEX.  567 


Statutes  cited. 

26  &  27  Vict.  c.  57  (regimental  debts  act),  310. 

c.  92  (Clauses  Consolidation  Act,  railways),  192. 
c.  93  (ditto  waterworks),  ib, 
c.  105  (bills  and  notes),  80. 

c.  118  (Companies  Clauses  Consolidation  Act),  192. 
Statutes  mercbant  and  staple,  100. 
Stock  in  trade,  assignment  of,  32. 
in  the  funds,  181-190. 

is  personal  estate,  183. 
jobbing,  87,  185. 
transfer  of,  184. 
contract  for  sale  of,  186. 
distringas  on,  187. 
charge  of  judgment  on,  188. 
transmission  of,  by  will,  189. 
unclaimed  dividends  on,  375. 
notice  to  trustee  on  assignment  of,  377. 
Stolen  goods,  366. 
Stop  order,  378. 
Stoppage  in  transitu,  41. 
Submission  to  arbitration,  165,  167. 

by  assignees  in  bankruptcy,  293. 
Succession  Duty  Act,  1853,  275,  277,  316. 
Superior  courts  of  record,  91. 
Sureties,  108,  109. 

discharge  of,  110. 
proof  of  debts  paid  by,  136. 
SURTIVORSHIP  amongst  joint  owners,  283. 

none  in  equity  of  joint  securities,  280. 
none  amongst  owners  in  common,  ib. 
amongst  joint  debtors,  283. 
as  to  joint  and  several  debtors,  283. 
of  office  of  executor,  303. 


Tail,  estate,  none  in  personal  property,  242. 
Tenant  without  impeachment  for  waste,  18. 
for  years  or  for  life,  ib. 
joint,  323. 
in  common,  ib. 
Tenterden,  Lord,  his  act. — See  statute  9  Geo.  IV,  c.  14. 
Testamentary  alienation,  growth  of  right  of,  294. 

See  Will. 
Timber,  16,  18. 

trees,  what  are,  ib. 
Title,  365. 

to  money  and  negotiable  securities,  ib. 

to  chattels  personal,  366. 

to  stolen  goods,  ib. 

to  horses  stolen,  367. 

under  factors  and  agents,  368. 

warranty  of,  ib. 

under  statutes  of  limitation,  370-374. 

to  unclaimed  dividends,  375. 

to  choses  in  action  by  notice,  377-379. 

through  deeds,  wills,  &c.,  379. 


668       •  INDEX. 


Title,  abstract  of,  ib. 

covenants  for,  ih. 

to  shares,  ib. 

comparison  of,  to  real  and  personal  estate,  380. 

to  goods  bond  Jide  acquired,  48,  366. 

deeds,  9,  11. 

solicitor's  lien  on,  29. 
Tombstone,  13. 

Trade,  contracts  in  restraint  of,  86. 
marks,  234,  235. 
bankruptcy  of  partners  in,  286. 
liability  of  executors  carrying  on,  289. 
customs  of,  369. 
Traber,  who  is,  within  the  bankrupt  laws,  124*. 
Transfer  of  stock,  184. 
Trover  and  conversion,  23,  45. 

recovery  in,  43. 
Trust,  though  voluntary,  enforced  in  equity,  34. 
settlements  by  means  of,  239. 
funds,  act  for  better  securing,  270. 
for  payment  of  creditors,  when  revocable,  272. 
.  for  wife's  separate  use,  354. 
form  of,  o'f  stock,  390. 
none  entered  on  ship's  register,  53. 
Trustee  Act,  1850..  266. 

Trustees,  former  liability  of,  not  investing  in  consols,  183. 
transfer  of  stock  when  they  refuse,  184. 
infant,  186. 

power  to  appoint  new,  264,  265. 
costs  of,-  267. 
responsibilities  of,  ib. 
indemnity  and  reimbursement  of,  269. 
act  for  relief  of,  270. 
punishment  of  fraudulent,  ib. 
power  to  apply  for  opinion  of  judge,  ib. 
'  of  personal  estate  made  joint  owners,  277. 

notice  to,  on  assignment  of  chose  in  action,  377. 
inquiry  of,  as  to  prior  assignments  of  choses  in  action,  ib. 
form  of  usual  clauses  in  settlement  as  to,  399. 

U. 

Umpire,  176,  177. 
Uncertificated  bankrupt,  147. 
Unclaimed  dividends,  375. 
Unlawful  contracts,  69,  84. 
Use,  conveyance  by  way  of,  11. 
Usurious  contracts,  89. 

V. 

Vendor's  lien,  41. 
Vested  interests,  239. 

the  courts  lean  to,  253. 
giving,  to  children  by  settlement,  254. 
Voluntary  trust  enforced,  34. 
bonds,  105. 

preference  in  bankruptcy,  144,  151. 
settlement,  void  as  against  creditors,  272. 
binding  on  settlor,  273. 


INDEX.  569 

Voluntary   settlement  of  personal  estate  not   void   as  against  subsequent  pur- 
chasers, 274. 

W. 

Wagers  void,  88. 

Wages  to  servants  of  bankrupt,  144. 
Wales,  custom  of,  294,  335. 
Warrant  of  attorney,  93. 

to  secure  annuity,  94. 
execution  and  attestation  of,  95. 
to  be  filed  within  twenty-one  days,  96. 
in  case  of  bankruptcy,  ih. 
WARRANTYon  Sale  of  goods,  368. 
Waste,  tenant  without  impeachment  of,  18. 

being  impleaded  of,  ib. 
Widow,  usually  preferred  in  grant  of  administration,  328. 
her  share  under  the  Statute  of  Distribution,  332. 
when  deprived  of  her  distributive  share  by  settlement,  342. 
Widowhood,  gift  to  a  woman  during,  340. 
Wife,  executrix,  302. 

covenant  to  settle  her  future  property,  270. 

no  duty  on  legacy  to,  315. 

a  feme  covert,  343. 

her  chattels  personal  belong  to  her  husband,  344. 

her  paraphernalia,  345. 

her  legal  choses  in  action,  346. 

her  equitable  choses  in  action,  347. 

her  equity  to  a  settlement,  348. 

disposition  of  her  reversionary  interests,  350,  351. 

her  husband's  liability  to  her  debts,  353,  358. 

her  will  of  her  personal  estate,  354. 

trusts  for  her  separate  use,  354,  355. 

restraint  on  her  anticipation,  356. 

powers  may  be  exercised  by,  247. 

separation  of,  357. 

protection  when  deserted  by  her  husband,  360. 

her  alimony,  ib. 

a  feme  sole,  361. 

See  Married  Woman. 
Will,  294. 

attestation  of,  296. 

revocation  of,  298. 

domicile,  298,  299. 

executor  of,  301. 

probate  of,  305-310. 

ecclesiastical  jurisdiction  over,  306. 

registration  of,  in  Court  of  Probate,  307. 

of  wife,  by  husband's  authority,  354. 
Winding-up  Acts,  199. 
Witnesses,  examination  of,  by  arbitrators,  169. 

to  a  will,  296. 
Writ  of  mandamus,  60. 

of  injunction,  ib, 

0?  fieri  facias,  48. 

of  levari  facias,  49. 

of  elegit,  ib. 

of  capias  ad  satisfaciendum,  100. 
WRiTiNfJ,  what  contracts  to  be  in,  37,  39,  73. 

37 


570  INDEX. 


Y. 

Year,  agreement  not  to  be  performed  within  a,  75. 

of  executor,  313. 

of  administrator,  329. 
York,  custom  of  province  of,  294,  335. 
Younger  children,  250. 


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